In Re Matteson
In 1999, the Washington Department of Corrections (DOC) transferred 254 inmates to the private Crowley County Correctional Facility (Crowley) in Olney Springs, Colorado. Many of those inmates have filed, pro se, personal restraint petitions with this court contesting the legality of their transfer. Review has been granted, and counsel appointed, for three representative petitions from Jason Hull, Michael Matteson, and Russell Taylor. Together petitioners argue that the Legislature improperly granted the DOC the authority to transfer them to Crowley. In the alternative, they argue that due process required a pretransfer hearing. They contend that the DOC has surrendered jurisdiction over them as a result of their transfer and seek release from incarceration for the remainder of their sentences. For reasons set forth herein, we deny the personal restraint petitions and hold that the DOC possessed the proper statutory authority to transfer the petitioners to Crowley, and further hold that this transfer did not violate due process.
FACTS
Because these personal restraint petitions (PRPs) were originally before us pro se, the record is very limited. “Legal face sheet[s]” attached as exhibits to the DOC‘s response briefs reveal in scant detail the petitioners’ crimes and sentences. Hull was convicted of second degree murder in Clark County Superior Court and is serving a sentence of over 23 years. Matteson was convicted in King County Superior Court of child molestation and is serving a sentence of over 10 years. Taylor was convicted of second degree murder in Thurston County Superior Court and is serving a sentence of over 18 years.
In November 1998, the DOC signed a “Memorandum of Understanding” with the Teamsters’ union that represents guards in its correctional facilities. That memorandum spoke of “an immediate need to address the offender overcrowding situation until such time as beds come on line at Stafford Creek Corrections Center.”1 It was agreed that placement of offenders outside of DOC facilities would be “an interim measure only” and that “[a]t such time as beds become available within the Department, all offenders will be returned to facilities operated by the Washington State Department of Corrections.”2
In early March 1999, Hull, Matteson, and Taylor were among 254 inmates transferred from Washington correctional facilities to the private Crowley facility. Each inmate was granted the opportunity to appeal his transfer.3 According to an affidavit from Eldon Vail, the deputy secretary of DOC, the reason for this transfer was that the DOC was “experiencing an excess of inmates over bed space. The overcapacity problem is expected to continue until early 2000, when it is anticipated that the Stafford Creek facility in Grays Harbor will be completed and available.”4 Vail stated that “overcrowding in a prison setting can be very dangerous” and “ordinary methods” of easing it could not have relieved the necessity of transferring the inmates temporarily to Crowley.5 He averred that not only would the construction of temporary bed space have taken too long, but other state facilities did “not have sufficient capacity to accept any substantial number of DOC inmates.”6
Upon being transferred to Colorado, the Washington inmates filed an array of PRPs—generally arguing that their transfer to Colorado was illegal. In August and September 1999, Hull, Matteson, and Taylor each filed, pro se, the underlying PRPs at issue here. We granted review and consolidated the three PRPs. In his October 29, 1999, order granting review, Chief Justice Guy also directed that counsel be appointed to represent the three petitioners. The American Civil Liberties Union was granted leave to file an amicus curiae brief.
Prior to review being granted, Hull had originally requested preliminary relief preventing his transfer back to Washington, and Chief Justice Guy denied this in his order. Undeterred, all three petitioners joined forces in a second pro se motion for a preliminary injunction to prevent Crowley‘s warden from transferring them from the facility prior to the resolution of their PRPs. The clerk advised the petitioners that this motion should be filed through their counsel of record, and counsel advised him that she had no objection to the filing. The clerk then denied the motion, noting that Chief Justice Guy had already denied the same motion in Hull‘s case. Counsel made a motion to modify this ruling, and that motion was denied on May 2, 2000. All Washington inmates had been returned to state facilities as of June 28, 2000, and the DOC‘s contract with Crowley expired two days later.
ANALYSIS
I.
At the threshold, we must resolve a motion by the State to dismiss this matter as moot in light of the fact that, following oral argument, all three petitioners were returned to Washington. We decline the State‘s motion to declare this matter moot for that reason, as it ignores the nature of petitioners’ argument. Petitioners were not seeking to return to Washington. Instead they claim that the State surrendered jurisdiction over them as a result of their allegedly unlawful transfer to Crowley. In light of petitioners’ argument, their transfer back to Washington would only compound their injury (through continued incarceration), not remedy it. While we do not accept this argument, we will resolve the issues petitioners raise.
In a PRP, it is not enough for petitioners to demonstrate constitutional error. They must meet the “threshold burden of demonstrating actual and substantial prejudice” arising from that error.7 The error must be “significant enough to justify overriding principles of finality.”8 This is true because “`collateral relief undermines the principles of finality of litigation, degrades
The petitioners argue that their restraint is unlawful because “[t]he conditions or manner of ... restraint ... are in violation of the Constitution of the United States or the Constitution or laws of the State of Washington....”
In granting review, we directed that the parties specifically address whether the Legislature properly amended
The secretary shall manage the department of corrections and shall be responsible for the administration of adult correctional programs, including but not limited to the operation of all state correctional institutions or facilities used for the confinement of convicted felons. In addition, the secretary shall have broad powers to enter into agreements with any federal agency, or any other state, or any Washington state agency or local government providing for the operation of any correctional facility or program for persons convicted of felonies or misdemeanors or for juvenile offenders. Such agreements for counties with local law and justice councils shall be required in the local law and justice plan pursuant to
The question is whether the 1999 changes were a grant of authority, in violation of
The DOC, pointing to another statute, argues that its authority for transferring inmates to a private, out-of-state facility predated 1999. In relevant part,
We presume that a statute is constitutional and those “`challenging its constitutionality must demonstrate its unconstitutionality beyond a reasonable doubt. This standard is met if argument and research establish that there is no reasonable doubt the statute violates the Constitution.‘”11
We recently noted that “a budget bill, by its nature, appropriates funds for a finite time period—two years—while substantive law establishes public policy on a more durable basis.”13 Because
The same Fifty-Sixth Legislature that adopted the changes to
The legislature has in the past allowed funding for transfer of convicted felons to a private institution in another state. It is the legislature‘s intent to clarify the law to reflect that the secretary of corrections has authority to contract with private corporations to house felons out-of-state and has had that authority since before February 1, 1999, when specific authority to expend funds during specified bienniums was granted under
Clarifying changes were made to
“`Wherever possible, it is the duty of this court to construe a statute so as to uphold its constitutionality.‘”18 Of curative legislation,
The scope of the power of the DOC secretary to transfer inmates, under
A curative act is a statute passed to cure defects in prior law, or to validate legal proceedings, instruments, or acts of public and private administrative authorities. In the absence of such an act the statute would be void for want of conformity with existing legal requirements.
Except as it may invade some substantive interest which enjoys specific constitutional protection, a curative act may validate any past action which the legislature might have authorized beforehand....
Generally, curative acts are made necessary by inadvertence or error in the original enactment of a statute or in its administration. Action under the statute is usually taken in good faith and no rights are jeopardized by the validation of the prior good faith action. Because of the positive policy thus served by curative legislation, to sustain the reliability of official actions and secure expectations formed in reliance thereon, they are entitled to liberal construction in order to achieve full fruition of their remedial purposes.24
Counsel for petitioners conceded during oral argument that a curative act is applied retroactively but argued, quite implausibly, that ESSB 6761 was not intended to be curative.25 We disagree. In light of the foregoing, we find any ambiguity concerning the DOC‘s power under
II.
With the central question in this case answered, the remaining issue, presented in the alternative, is quickly resolved. Petitioners also invoke the factors set forth in State v. Gunwall,27 in an attempt to argue that their due process rights under
In Gunwall,29 we identified six nonexclusive criteria that must be addressed before we will interpret a provision of the state constitution independent of its parallel clause in the federal constitution: (1) the state provision‘s textual language; (2) significant differences between the federal and state texts; (3) state constitutional and common law history; (4) preexisting state law; (5) structural differences between the federal and state constitutions; and (6) matters of particular state interest or local concern.
The textual language of
Effectively conceding that there is no material difference between the state and federal due process clauses, petitioners also invoke
Petitioners also refer us to In re Personal Restraint of Young.40 However, Young does not support their position. Young involved a Washington inmate who, after having been placed in administrative segregation for disciplinary reasons, was transferred from a state facility to a federal penitentiary, and ultimately transferred to state facilities in Tennessee and Arizona.41 In a PRP he argued that he had a right to be incarcerated in Washington, or at least to be granted a hearing prior to being transferred, and that his constitutional right of access to the courts was violated by the transfers.42 We noted that “persons convicted of felonies are not sentenced to a particular institution[,]” and “it appears that the laws of this state afford a prisoner no reasonable expectation that he will be confined in the state penitentiary so long as he obeys the rules.”43 We further noted that
[a]n interstate transfer may involve a greater loss, simply because of the greater distance from home (assuming the prisoner‘s home was situated near the first prison, as is the case here). Nevertheless, unless he has some reasonable expectation grounded in state law that he will not be transferred except upon a finding of certain facts, he does not have a liberty interest in remaining at his place of incarceration under the Fourteenth Amendment‘s due process clause.44
However, in Young it was not necessary to assess whether
Here, quite unlike the facts in Gitchel or Young, the petitioners’ temporary transfer to Colorado was not a condition of punishment nor the result of discipline. The DOC is correct that Young cannot be understood to require a pretransfer hearing here, where a rule does not require it and the out-of-state transfers were not made for sentencing or disciplinary reasons where arbitrariness would be a concern. The DOC notes that the petitioners here did, however, have a right of appeal of transfer decisions, and that various criteria went into making those decisions. Similar to Young, here the DOC‘s own policy affords a remedy. No argument is made that these three petitioners did not have the opportunity to appeal their transfers.
Under these circumstances, we can rely upon federal constitutional law. We find persuasive the United States Supreme Court‘s resolution of a similar case—one involving an inmate transferred from a state prison in Hawaii to one in California.48 There, the Court wrote, “Just as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State.”49 In language directly relevant here, the Court noted that “[o]vercrowding ... may necessitate interstate transfers. For any number of reasons, a State may lack prison facilities capable of providing appropriate correctional programs for all offenders.”50 Moreover, the Court wrote, “Even when, as here, the transfer involves long distances and an ocean crossing, the confinement remains within constitutional limits.”51 Finally, the Court specifically rejected a banishment argument much like the one petitioners here advance, writing, “[R]espondent in no sense has been banished; his conviction, not the transfer, deprived him of his right to freely inhabit the State. The fact that his confinement takes place outside Hawaii is merely a fortuitous consequence of the fact that he must be confined, not an additional element of his punishment.”52 In short, as the United States Seventh Circuit Court of Appeals recently observed, in passing upon the constitutionality of a Wisconsin statute allowing Wisconsin authorities to contract with private, out-of-state prisons: “A prisoner has a legally protected interest in the conduct of his keeper, but not in the keeper‘s identity.”53
In sum, notwithstanding the petitioners’ policy arguments against private prisons and prison transfers generally, arguments that would be better addressed to the Legislature,54 the law is that prisoners do not have a right to be housed in a certain prison or even a certain state. We reaffirm that “persons convicted of felonies are not sentenced to a particular institution....”55 Petitioners do not make a persuasive case for an independent application of
CONCLUSION
The DOC was operating under a proper grant of authority from the Legislature when
GUY, C.J., SMITH, MADSEN, TALMADGE, and IRELAND, JJ., concur.
ALEXANDER, J. (concurring).
Although, I have substantial doubts about whether the Department of Corrections had the legal authority to transfer the petitioners to a private prison in Colorado without, at the very least, providing them with a pre-transfer hearing, I nevertheless concur in the decision to deny their personal restraint petitions. I do so because the case is moot. I reach that conclusion because the petitioners and all other Washington inmates have now been returned to Washington, state institutions. Because I am of the view that the maximum relief that Hull, Matteson, and Taylor would have been entitled to receive, had we concluded their transfer was illegal, was to be returned to this state, we can afford them no relief. Little is served, therefore, by legal jousting about the legality of a transfer that has now been undone and appears unlikely to be repeated.
JOHNSON, and SANDERS, JJ., concur.