*1 785 P.2d COOTZ,
Anthony G.
Petitioner-Appellant, Idaho, Respondent.
STATE of 18118.
No.
Supreme Court Idaho.
Dec. Cootz, Boise,
Anthony pro G. se. Jones, Gen., Jim Atty. Timothy D. Wil- son, Gen., Boise, Deputy Atty. respon- dent. Heard on the briefs. JOHNSON, Justice. prisoner’s rights
This is a case. In reaching our we must first deter- scope process mine whether of the due clause of our state constitution is the same as that clause of the due federal constitution. We hold that our due clause does the same as that of the federal con- stitution. we conclude that the this case proof burden of established the United prison discipline cases is the standard we establish under However, our due clause. we hold inadequate there written find- were ings disciplining on in of the evidence relied prisoner. question We also permit two witness- officer’s decision not to *2 testify hearing. testify es that it disciplinary at the nesses on his behalf and was hearing magistrate prerogative within the of the We reverse the decisions of the offi- preponder- cer to determine whether the judge prisoner’s and the district the that ance of the evidence considered at the hear- right was not violated.
ing
hearing
finding.
the
officer’s
sustained
I.
evidentiary
In
hearing
the
conducted
magistrate
hearing
the
testified
the
officer
PRIOR
BACKGROUND AND
hearing
reaching
that in
his decision at the
PROCEEDINGS.
(1)
he
the
officer’s
considered
correctional
Cootz,
report, (2)
testimony
In December
the
Anthony
then
offense
two
(3)
request
Cootz,
in the
called at the
Southern Idaho Correctional
inmates
Institution,
(4)
charged
violating
testimony
the
the fact that
was
Cootz
by kicking
sergeant
charge
the
was
of the unit
rules
correctional offi-
who
hearing,
cer
the
where the correctional officer worked
only
in the chest. At
the
report
have
presented against
would not
allowed the offense
Cootz was the
to be written
he had not felt or believed
report.
correctional officer’s offense
The
hearing
that
the
was true. The
testify.
correctional officer did not
Neither
officer also testified that he did not call the
requested
did
four
Cootz. Cootz
that
wit-
sergeant
disciplinary
as á witness at the
nesses
in his
be called
defense. Two of
hearing
duty
he
because was not on
at the
inmates,
these,
others,
both
Two
testified.
hearing.
time of the
He said he did not call
sergeant
inmate and the other
the
the other inmate as a witness at the disci-
charge of the
where
unit
the correctional
hearing
plinary
he had been
because
trans-
worked,
officer
not called
were
hear-
ferred somewhere else.
ing
ground they
officer on the
were not
available. Cootz contended that
ser-
sergeant
testify
The
did
at the evidentia-
geant
say that the
would
correctional offi-
ry hearing
magistrate. He
before the
said
cer
him
he
told
would lie about the
hearing
he did
remember
cor-
purported assault. Cootz said' he did not
say
officer
he
lie
rectional
would
about the
what the third
be
know
inmate would
able
assault,
purported
memory
but that his
incident,
say about the
because
had might have been better at the time of the
opportunity
had an
talk
hearing.
hearing
At
disciplinary
be-
the.
mate.
magistrate
fore the
Cootz said that
third inmate would have been able to testi-
hearing
Following
hearing
officer
fy
directly
as to other matters not
related
guilty
found Cootz
violation. The
incident,
purported
assault
but
hearing
finding of
officer’s written
the evi-
place at
other
matters that took
end of
finding of
guilt
he relied
dence
the tier where the incident occurred.
perponderance
read: “The
evi-
[sic]
put
you
forth indicates
are indeed
magistrate
dence
The
concluded that Cootz had
assaulting the
The
guilty
right
process by
officer.”
hear- not
denied his
to due
been
hearing
ing
sixty
sanctioned
officer to call the
officer
Cootz
refusal
days
sergeant and
disciplinary detention.
the third inmate witnesses.
magistrate also concluded
there
filed a
for
petition
Cootz
writ
habeas
disciplinary
was evidence admitted
corpus alleging that he
denied due
hearing upon
hearing
officer
hearing.
Cootz
finding
guilt. could have made a
among
grounds
petition
listed
magistrate
petition
denied the
for writ of
(1)
right
he had
denied the
to call
been
corpus.
habeas
have
that he
witnesses
could
testified
(2)
appealed
magistrate’s
no evidence
decision
did not kick the officer and
judge
presented
judge.
had
at the
hear-
the district
The district
been
finding
magistrate.
guilt.
In its
affirmed the decision of
to sustain a
judge
petition
doing
the state contended
so the district
ruled that the
return to
upheld
permitted
wit-
officer’s
would
that Cootz
supported
if it were
by some
proposed
evidence. In When the
art.
13 was amend-
§
doing so the
judge
district
cited the
process clause,
deci- ed to insert the due
sion of the United
objection
Court in
was made that the
language
same
Superintendent,
Mass. Corr. Inst. v.
existed
the fourteenth amendment to the
445,105
day,
scope
we conclude that
is not
necessarily
prepared
the same.
are
We
parameters
consider the
of due
un
ÍI.
1,
der art.
13 of our constitution without
§
THE
IS
SCOPE OF THE DUE PROCESS being necessarily
by
interpreta-
bound
THE
CLAUSE OF
IDAHO CONSTI-
given
process by
tion
to due
the United
THE
THAT OF
TUTION
SAME AS
Supreme
States
Court.
State
Cf.
THE UNITED STATES CONSTITU-
746,
We do not find difference in *4 ING PROVIDE SOME EVIDENCE TO impaired by one com- SUPPORT HIS DECISION? pared to the other. Hill the Court said: requirements of due find hearing officer’s written depend balancing flexible and on a ing relied did not indicate what evidence he interests affected relevant merely in It disciplining Cootz. referred government prisoner action. a Where “perponderance to the of the evidence [sic] good has a interest in time cred- in put hearing forth.” The officer testified its, the of such threatens his loss credits magistrate he hearing before the prospective freedom from confinement report in part relied in on the offense by extending length imprisonment. reaching discipline his decision to Cootz. strong Thus the inmate has a interest in Although report might have the offense assuring good that the loss of time cred- support evidence to the dis been sufficient imposed arbitrarily. its is not This inter- decision, ciplinary hearing officer’s fail est, however, must be accommodated findings ure to state his written setting prison, the distinctive of a where on which he relied violated one of evidence disciplinary proceedings place “take requirements of There the Su Wolff. closed, tightly controlled environment “that there must be a preme Court held
peopled by those who have chosen to
by the factfinders as to
‘written statement
violate the criminal law and
relied on and reasons’ for the
the evidence
lawfully
doing
so.”
incarcerated for
disciplinary action.” 418 U.S. at
Consequently,
identifying
the safe-
2979,
decision. the written do not V. indicate evidence the officer CONCLUSION. *5 support his considered to decision. magis- We reverse the decision of the agree We are unable to with district denying trate a writ of habeas cor- Cootz findings judge the issue of written pus, by judge, as the district and affirmed by was waived he did not Cootz because magistrate remand case present argue point or before evidence granting writ and fur- magistrate. major of the One thrust proceedings. ther challenge throughout Cootz has made this there was sufficient proceeding is that McDEVITT, JJ., and concur. BOYLE evidence to to disci- pline generally him. his focus While BISTLINE, Justice, specially of the inadequacy on the offense concurring. decision, support the preserve did opinion by Justice Johnson authored question adequacy evidence. it is gained my concurrence because has requirement findings The written of Wolff holding is well-substantiated that Cootz ques- inextricably is interwoven with this process. to some due at the least entitled tion. additionally only purpose writing is My inadequacy the find- Because of the authority sug- competent to observe that officer, reverse the ings of we more gests that an inmate is entitled to magistrate decision of the as affirmed greater than degree dignity and a rights judge. the district present to be the norm. seems Johnson moves Justice IV. he writes that: direction when doubtful WIT- TO CALL THE FAILURE OTHER with the revoca- In Hill1 Court dealt REQUESTED BY COOTZ. NESSES Here, good we deal tion of time credits. do not detention. We While based with reversed any significant hear- inadequacy difference find In- L.Ed.2d 356 Superintendent, Massachusetts Correctional 2768, Hill, U.S. 86 stitution 105 impaired by toughest) is one com- sanction listed on the Manual pared to the other. page “Range entitled of Allowable Sanc- page, tions.” At the end of that Class D 41, 785 (empha- 117 Idaho at P.2d at 166 added). light sanctions include such sanctions as High sis Court Hill had days duty, under five of extra two hours review board’s decision each placing inmates in day, warnings. two isolation for fifteen or formal As Justice Ste- days revoking days and Meachum, hundred explained in his vens dissent good their time credits. Justice O’Connor’s portion of which included at the end of Hill, majori- for the Court in opinion, this this Court should be more here, ty does centers the revocation relatively concerned about this serious credits, good time and does not discuss liberty. vasion of Cootz’s The sanction he implicated interests which are received was not in the form of formal days numerous of isolated confinement. warnings, prolonged disciplinary but rather At least recognized one state has detention. “some evidence” standard of but de- quick A Disciplinary review of the Of- adopt Maryland cided not to it. for some Report, piece fense the main of documenta- applied time had the “substantial evidence” case, ry raises serious standard to a review of administrative deci- questions as to whether the evidence sions, digress and saw no reason to from against supports the severe sanction practice notwithstanding Hill. See charged he received. Cootz was with of- Secretary Safety, Greene v. Public 05-C, fense code described Md.App. (Md.App. 510 A.2d Department Policy of Corrections and Pro- 1986), citing approval Bryant cedures Manual as: Department Safety Public and Correc- any attempt willful or threat to Service, Md.App. tional 365 A.2d Assault— inflict another, injury upon person (1976) (penal institution’s actions chal- coupled apparent present when abil- lenged by grievance procedures will so, ity any display to do intentional upheld supported by substantial evi- dence). Idaho, give hand, of force such as would the victim on the other has nei- legislatively expect bodily ther or judicially nor heretofore reason to fear immediate applicable set standard to the review of harm. *6 grievance proceedings Depart- or Clearly, an element of offense 05-C is the procedures. ment of Corrections Obvious- “present ability” carry the offender to ly there should be in place standards assault, “display out the or a of force” govern the review such administrative which strikes fear in the victim. proceedings. According Disciplinary the Offense be, perhaps, good why There reason incident, Report of the filed the legislature adopted the Idaho has not guard alleged who the attack: standard of apply review that would to all I putting was on the tier inmates back in administrative decisions. As Justice Ste- pens, there cells from the exercise I had vens wrote in his dissent in Meachum v. pen inmate cootz 15995 out the with
Fano, 96 S.Ct. back, his as hands behind his cuffed (1976), L.Ed.2d 451 it is realized that differ- cell, # passed cell 6 inmate Garzee’s ent standards of review and levels of scru- inmate cootz hesitated for a moment and tiny appropriate. put, it Otherwise grabbed something laying the for on makes sense to more concerned about a food-tray that cell. I asked to shelfeof greater liberty invasion of a citizen’s inter- refused, see it was: and Mr. cootz what case, appear In this ests. it would back, Fuck-it, saying give I’ll it and he a Accord- Cootz received severe sanction. shelf, put it as Mr. back on Garzee ing Department to the Poli- Corrections it, grabbed inspect reached for I it to it. Manual, placement in cy and Procedure me, comming leg At this time I seen a Disciplinary sixty days is the Unit Class sanction, (and top by implication quick respond A-l but it was to for me to chest, in knocking and it struck me holding. than its If narrow Coui;t my merely the wind out of me. Had I not had held that the transfer did, in way penal arms front me the I I from one institution does sufficiently believe it could have been far more se- to another not cause a vere, grievous deprivation loss to my as arms amount to a obsorbed most liberty meaning I within the of the Due stEpped shock. then back out of his Process Clause of reach and went to Fourteenth the E-Door to advis omitted], Amendment I would [footnote Department Discipli- Idaho of Corrections— disagree with the but not conclusion nary Report, Log Offense Number 12—83— The analysis. the constitutional Court’s (mistakes in original; emphasis M-73 however, holding today, appears to rest added). conception I ‘liberty’ on a which con- The difficulties re- encountered with this fundamentally sider incorrect. port, which formed the main thrust ‘liberty The Court indicates that a Cootz, against obvious. should be may have two terest’ either of sources. handcuffed, Cootz is behind hands Court, According liberty a interest Yet, is supposedly his back. able to Constitution,’ may ‘originate in or object remove an from an inmate’s within Apart may have ‘its law.’ roots state cell he is escorted His past that cell. possible origins, from those two guard-escort claims kicked him that Cootz person is unable to a find that has chest, arms notwithstanding that his constitutionally interest protected guard, and hands were immobilized. liberty. [Citations omitted.] who claims to have kicked state, If a man were a creature of the forward, chest, fall does not backward but But nei- analysis would be correct. Addi- stop with his hands out his fall. Rights Bill of the laws of ther the nor tionally, the status as handcuffed sovereign liberty which States create the to not affected his determined protects. Due Process Clause assault, “present ability” carry out provisions relevant constitutional ability “display or his to show of force” sovereign power limitations on fear the victim. strikes infringe of the citizen. Nevertheless, rule evidence” “some either create The relevant state laws case, in this de- thought to be satisfied rights, the free- property they or curtail spite glaring inconsistencies of the citizen must live dom only the guard’s report. Cootz received course, society. law is essen- ordered Of evi- guaranteed him the “some enjoyment and tial to the exercise the rule that dence” rule. Should ft be society. complex individual justify pro- simply “some evidence” can liberty, not the But it is source of longed disciplinary detention? severe surely not exclusive source. those con- be remembered that It should thought that all I had it self-evident *7 pay their debt of crime made victed by their Creator with men were endowed through society, society by removal from liberty one of cardinal unalienable as they are being On convicted confinement. rights. It is that freedom basic while prison with directions protects, not sent rather Due Process Clause they punishment are to have rights privileges incarcerated or particular than Rather, medie- upon them. such by specific regulations. inflicted laws or conferred past. Jus- are far distant days val the source of description of A correct Meachum, Stevens, in his dissent tice liberty protected by the Constitution terms, yet simple forceful explained, not, course, this case. of decide does distinguish, even is why it dealing with For, hypothesis, by varying degrees between prisoners, for of their may deprived persons liberty: constraints been convicted liberty they because trial. We a fair of criminal conduct after Supreme] Court’s The [United ask whether therefore first more disturb- should Meachum is rationale [in ] deprivation liberty legal custody, persuaded which follows con- we are partial. viction is total or Morrissey actually portends a more ba- conceptual holding: liberty protect- At sic prevailing one time the view was deprivation essentially by was ed the due total. clause —in- penitentiary inmate was considered deed must to some extent —coexist ‘the slave of the State.’ See legal custody pursuant to convic- Ruffin Commonwealth, 62 Va. deprivation tion. The liberty follow- Although wording of the Thirteenth adjudication guilt partial, is provided Amendment A total. residuum of constitution- point omitted], of view [footnote ally protected rights remains. years ‘courts in recent have moderated “As we noted in Morales implications the harsh of the Thirteenth Schmidt, the view once held that an Amendment.’ totally inmate is a mere slave is now moderating trend culminated rejected. pun- The restraints and the holding this Court’s landmark that not- en- ishment which criminal conviction withstanding legal the conditions of cus- place beyond tails do not the citizen tody pursuant conviction, to a criminal respect ethical tradition that accords parolee has a liberty measure of that is dignity every and intrinsic worth of protection^] entitled to constitutional individual. ‘Lib- [Footnote omitted.] see, therefore, liberty “We erty’ ‘custody’ mutually are not indeterminate, parolee, although concepts. exclusive many includes of the core values of Morrissey “If the decision is not nar- unqualified liberty and its termination rowly by limited the distinction be- ‘grievous parolee inflicts a loss’ on the physical tween confinement and condi- and often on hardly others. It is use- liberty large society tional to live at any longer try ful to deal with this omitted], requires that due [footnote problem in parol- terms of whether the process precede any depri- substantial liberty ‘right’ ‘privilege.’ ee’s is a or a persons vation in cus- name, By whatever is valu- tody. regard We believe a due able and must be seen as within the inmate, interests of the individual protection of the Fourteenth Amend- well as the interests of that substantial ment. Its termination calls for some segment society represent- of our total orderly process, however informal.” inmates,23 requires ed that Morris- Brewer, Morrissey v. sey be so read.” United States ex rel. 2593, 2601, 92 S.Ct. 33 L.Ed.2d Twomey, Miller v. 479 F.2d 712- 484.
Although the Court’s Mor- [in rissey] narrowly written with care- portion population emphasis permission given "A substantial our ful on the Approximately affected law in this area. parolee to live outside the people any subject million are at 1.3 one time walls, the held that the authority; to correctional untold millions have possesses individual a residuum of con- increasing criminal records. There is doubt as propriety treating large group stitutionally protected liberty in le- while as, persons varying degrees, outcasts from gal pursuant custody to a valid convic- society. increasing recognition And there is parole merely tion. For release on that such treatment is not in the ultimate inter conditional, interrupt and it does not society. Denying ests offenders chance challenge arbitrary power by assertions of legal custody. State’s I remain con- *8 officials, barring correctional and them from vinced that the of Appeals legitimate opportunities employment, such as correctly analyzed Seventh Circuit goal are inconsistent with the correctional rehabilitation, significance true of the Morrissey hold- emphasizes the need to respect willingness cooperate instill for and to ing, when I wrote for in that court 1973: society help with and to the offender assume physical “In view of the fact that the role of a normal citizen.” Com [President’s merely species confinement is one mission Law Enforcement and Administra- Justice, Report: tion of Task Force Corrections prison community, my hy- basic (1967).] correct, pothesis protected is has a holding in It demeans the Morris- right pursue his to limited rehabilita- sey importantly it demeans —more minimum, goals, tive main- or at to concept of liberty itself—to ascribe to dignity tain whatever attributes of holding nothing pro- that more than a tightly with his associated status of an tection interest that State has society. unquestiona- It controlled through prison created own regula- its to bly power of the State within protected tions. For if the inmate’s status, change abruptly and ad- that greater liberty are no interests than versely; change if the is sufficient- but allow, really the State chooses to he is ly grievous, may imposed it not be little more than the slave in described arbitrarily. In such due case I century the 19th cases. think it clear must be afforded. even the retains an that inmate unal- mean, course, that That does not very in ienable interest the—at every depriva- adversity amounts to a right minimum the to be treated meaning Four- tion within the dignity may Constitution —which teenth Amendment.4 ignore. never premise This basic is not inconsistent mean, however, every that "This does recognition of the obvious fact subject by prison officials be should have wide State must latitude judicial rather than review or courts determining in conditions of con- experienced prison write administrators should regulations. Morrissey due imposed us that reminds finement will be follow- concept which takes ac- is a flexible supervise conviction crime. To importance count of the of the interests prison population, and control its stake; thus, abundantly myriad clear that a power change must retain the State problems prison re- administration must proper judicial beyond individuals, con- main or for conditions significant deprivations Only cern. prisoners, quickly groups of and with- Morrissey. raise Moreover, issues under constitutional many respects judicial review. out determining require in whether to problems governing its the State’s process, between we need choose rights panoply’ ‘full afforded a defendant population comparable hand, prosecution, and on the one a criminal governing mili- a those encountered whatsoever, Rath- safeguards no er, on the other. unquestioning Prompt force. and tary illustrates, require- Morrissey aptly individual, even to may obedience shaped to fit ments of due particular needs situation.” United understand, he does not commands F.2d, Twomey, at 713. ex rel. Miller v. preservation be essential loss, grievous and that There must be Nevertheless, discipline. order I is somewhat flexible. term itself imposed the basic the limits within every certainly not consider would governing the controlled restraints even system, a within transfer retains his each individual population, of confine- onerous conditions more and, time, acquires a dignity status hand, ment, a loss. On the other such respect. is entitled to identify principled I am unable intended accom- Imprisonment is differentiating between basis for temporary removal plish more than general prison popu- from the transfer society order to offender from and a solitary confinement lation to committing him like of- prevent from disparate involving equally transfer his during period of incar- fenses physical facili- conditions between custody denies While ceration. ty and another. offend, opportunity to it also mate 229-235, Fano, improve Meachum v. opportunity an gives him 2540-2543, 49 L.Ed.2d and habits acquire and to skills himself (Stevens, J., (emphasis (1976) dissenting) help participate will him added). release. Within society open after
47 Perhaps that which Justice ness of rejection Stevens the Court’s of the reasons wrote in Meachum day be one discov- for failure to call third inmate because sowing ered as the enlight- seeds of he had been transferred “somewhere else.” enment. There have to be reasonable limits on the requirement prisoners move
BAKES, Justice, State concurring Chief around at these kinds administrative dis- part: part dissenting ciplinary hearings. Unfortunately the Regarding II, opinion Part the Court’s record in spell this case does not out concludes per- that “in this case we are prisoner location of the witness or dif- suaded that the ‘some evidence rule’ formu- trying ficulties involved in to obtain his lated Court in [Superin- Supreme Accordingly, attendance. we have no tendent, Mass. Institution Corr. Hill v.] record to evaluate the State’s failure to appropriate adopt us to pris- produce prisoner witness at the hear- discipline cases.” Since we are follow- ing. remanded, Since this must matter be ing the standards set down the United clearly that can be more set out in the Supreme Court in it is unneces- However, my view, record. prisoner if a sary dicta that the “conclude [of reasonably witness is not available in the 1, the due clause of Art. 13 of § compound, same then absence of the Idaho Constitution] showing witness was trans- same” as the due clause of the ferred out purpose preventing fifth amendment of the United States Con- his testifying, I it would believe be unrea- opinion stitution. As the points Court’s require sonable to the State to incur the out, we previously held otherwise. expense having hazard or the to move Peterson, v. State 233, 236, 81 Idaho 340 from site to witnesses site. 444, (1959). P.2d 446 We have also held any event, be there should some clear that the search and seizure clause of the showing that the witness critical to the Idaho interpreted Constitution is be sim- inmate’s case before viola- ilarly to the search and seizure clause of tion showing has made. Cowen, the fourth amendment. State v. 649, (1983);
104 Idaho State v. 662 P.2d
Oropeza,
387,
97 Idaho
If we going prior reconsider our Peterson,
decision State 81 Idaho (1959), P.2d 444 held that the due
process clause of the Idaho Constitution is substantially different from the due P.2d 172 process clause of the United States Consti- WERLINGER, Michael tution, we should wait until we have a case Petitioner-Appellant, might us arguably before where there be a difference and have the issue briefed and argued. As the recognizes, Court’s Idaho, Respondent. STATE of
this is not an case for such a No. 17937. claim to be considered. Appeals Court of of Idaho.
I concur as to III of Part the Court’s opinion which holds decision of the Jan. v.Wolff United States Court in McDonnell, U.S. (1974), requires
L.Ed.2d 935 this matter to remanded for concerning new
the evidence which the officer con-
sidered to his decision. regard
With to Part IV of the Court’s
opinion, vague- I am about concerned