138 Wash. 2d 388 | Wash. | 1999
Lead Opinion
— We are asked to determine if an inmate who is disciplined by the Department of Corrections (Department), pursuant to a regulation making it a serious infraction if the inmate commits four underlying minor
ISSUE
Was Gronquist entitled to relitigate the validity of the four general infractions
FACTS
Derek Gronquist is presently incarcerated, serving a 342-month sentence imposed upon his conviction in the King County Superior Court of three counts of attempted first degree kidnapping. Between October 1996 and February 1997, Gronquist was cited by prison officials at the Clallam Bay Corrections Center for four general infractions. Only one of the four general infractions charged against Gronquist is at issue in this case.
Gronquist acknowledges he was properly notified of the scheduled hearing, but he did not attend the infraction hearing allegedly because his call-out button
The general infraction hearing on the tobacco incident proceeded as scheduled before Sergeant McGarvey, who found the absent Gronquist guilty of the tobacco infraction as charged and imposed a sanction of cell confinement for six days. Gronquist claims he only discovered the call-out button was malfunctioning after the hearing and two corrections officers could verify the fact the button was malfunctioning.
I have reviewed your appeal and the General Infraction Report. . . . Where you were at the point in time is not the issue. Another was observed putting tobacco into your cell, and there must have been some reason for him to do it, and if it was a legitimate exchange[,] staff would have be[en] aware of [the] transaction. ... I concur with the Hearings Officer’s decision. . . . Appeal denied.
Gronquist’s PRP in Court of Appeals at Ex. D. By a letter dated November 27, 1996, Gronquist attempted to appeal the tobacco infraction to Robert Wright, Superintendent of the Clallam Bay Corrections Center, but Superintendent Wright never responded.
On February 27, 1997, Corrections Officer Vance Adam-ire issued a serious infraction notice to Gronquist charging him with violation of WAC 137-28-260(657) by having committed four general infractions within a six-month period. Hearings with respect to such serious infractions are commonly referred to as “657 hearings.” The offense is defined as:
Being found guilty of four or more general infractions which have been reported in writing arising out of separate incidents, all of which occur within a six-month period.
WAC 137-28-260(657).
On March 31, 1997, Lieutenant Schneider held a 657 hearing at which Gronquist appeared and asserted the following defenses: (1) the unauthorized communication
At the 657 hearing, Lieutenant Schneider denied Gronquist’s request to call various corrections officers to testify concerning the tobacco incident, or to have those corrections officers provide written statements. Lieutenant Schneider refused to call the witnesses because, as he stated, he was “not going to get back into the issue of what happened during the minors,” (Mar. 31, 1997) Hearing Transcript at 4, which he considered irrelevant to the serious infraction. He stated “[w]hat is relevant, [is] did you receive four general infractions in a six-month period? And were you found guilty of those infractions.” Id. at 5. Upon conclusion of the 657 hearing, Lieutenant Schneider found Gronquist guilty of the serious infraction and stated:
He [Gronquist] did receive four general infractions in a six-month period. He was found guilty of the four general infractions. Due process has been completed. No infraction is*395 overturned of the appeal. Sanction’s going to be 5 days deseg [disciplinary segregation], 10 days loss of good time. It’s a lesser sanction for a 657 this reporting period. Do you wish to appeal?
Id. at 6-7.
Gronquist subsequently appealed the 657 hearing decision to Superintendent Robert Wright. Superintendent Wright denied Gronquist’s appeal by letter, stating:
You [Gronquist] state . . . [the unauthorized communication infraction] is a Double Jeopardy. When an officer confronts an inmate’s behavior of breaking unit and institutional policies, then issues an infraction accordingly, it is not considered “Double Jeopardy.” You also state you missed a scheduled hearing. These are posted at least 24 hours in advance and are on the daily call-out. You further claim the call-fight to your cell was malfunctioning at the only precise time you attempted to leave your cell and attend your hearing. No work order has been submitted. ... I fully support the recommendation of the hearing officer. Appeal denied.
Gronquist’s PRR Ex. H at 6.
Gronquist filed this PRP in the Court of Appeals, Division One, challenging his conviction for the serious infraction, and the sanction of 5 days’ disciplinary segregation and 10 days’ loss of good time credits. The Court of Appeals, in a per curiam opinion, granted Gronquist’s PRP in part remanding for a new hearing because the Department violated Gronquist’s constitutional right to present witnesses at his 657 hearing. The court indicated Gronquist had a due process right to challenge the validity of the underlying general infractions at the 657 disciplinary hearing to determine whether he had four or more infractions in a six-month period, holding “[b]ecause Gronquist’s due process rights did not attach until the 657 hearing, it was only there that he could meaningfully challenge his general infraction by presenting witnesses and other evidence to support his defense.” See Gronquist, 89 Wn. App. at 603.
ANALYSIS
With respect to PRPs, a petitioner is entitled to full collateral review of a conviction or sentence if the petitioner proves actual prejudice from a constitutional error, or nonconstitutional error which inherently results in a complete miscarriage of justice. In re Personal Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). A personal restraint petition must be supported by facts or evidence upon which the petitioner’s claim of unlawful restraint is based and not solely upon conclusory allegations. Id. at 813-14. A petitioner must present evidence that is more than speculation, conjecture, or inadmissible hearsay. In re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 344 (1992).
Moreover, in a PRP challenging a prison disciplinary sanction, we further note such decision is reviewable only if the action taken was “so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding.” In re Personal Restraint of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984). A prison disciplinary proceeding is not arbitrary and capricious if the petitioner was afforded minimum due process protections applicable in such cases. In re Personal Restraint of Burton, 80 Wn. App. 573, 585, 910 P.2d 1295 (1996); In re Personal Restraint of Anderson, 112 Wn.2d 546, 548-49, 772 P.2d 510, cert. denied, 493 U.S. 1004, 110 S. Ct. 565, 107 L. Ed. 2d 559 (1989). Minimum due process in these cases means the prisoner must (1) receive notice of the alleged violation; (2) be provided an opportunity to present documentary evidence and call witnesses when not unduly hazardous to institutional safety and correctional goals; and (3) receive a written statement of the evidence relied upon and the reasons for the
A prisoner’s statutory right to earn good time credits is a “protected liberty interest in those credits which prevents their deprivation absent observation of minimum due process requirements.” In re Personal Restraint of Johnston, 109 Wn.2d 493, 497, 745 P.2d 864 (1987) (citing Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 453, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985)); Wolff, 418 U.S. at 557; In re Personal Restraint of Piercy, 101 Wn.2d 490, 495, 681 P.2d 223 (1984) (citing Wolff, 418 U.S. 539). Accord Sandin v. Conner, 515 U.S. 472, 477-78, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). In serious infraction hearings where sanctions include loss of good time credits, Washington prisoners are entitled to minimum due process.
In the case of general infractions, however, a prisoner’s minimum due process is implicated only when the prisoner faces a sanction that “imposes atypical and significant hardship ... in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484 (disciplinary segregation as sanction for general infractions does not entitle a prisoner to minimum due process, id. at 486). Where sanctions imposed for general infractions result at most in loss of privileges and not loss of good time credits, prisoners charged with general infractions are not entitled to minimum due process and the process afforded by regulation is all the inmate is due. See Wolff, 418 U.S. at 571-72 n.19 (noting “[w]e do not suggest, however, that the
Turning to the facts of this case, Gronquist claims a right to relitigate, in effect, the decision on general infractions in the course of his 657 hearing. He contends the failure to afford him this opportunity deprives him of any opportunity to have minimum due process, as in the present instance of the tobacco incident where he did not have an opportunity to actually litigate the merits of the controversy.
The Department’s principal argument relates to its substantial administrative burden in rehearing four general infractions for each of the many 657 violation hearings at its 2 prerelease facilities and 12 correctional institutions. The Department contends the Court of Appeals’ decision would compel it to conduct hundreds of additional 657 hearings per year, interfering dramatically with correctional staff duties, affording prisoners significant opportunities to manipulate the disciplinary process, and generally undermining safe institutional operations by disrupting the Department’s progressive discipline policy. Moreover, the revisiting of general infractions occurring over a six-month period may be functionally impossible since inmate or other witnesses may no longer be available.
An initial question left unexamined in the Court of Appeals’ decision is whether its analysis would allow a prisoner in a 657 hearing to relitigate the facts of every predicate general infraction, even where the prisoner exhausted all available administrative remedies. This question carries immense practical consequences, and, although the Court of Appeals’ per curiam opinion could be read to allow such relitigation, the Court of Appeals stated only:
Because Gronquist availed himself of his right to an administrative appeal, we leave for another day the question of whether an inmate must first exhaust his administrative remedies before being permitted to challenge a minor infraction at a 657 hearing.
Gronquist, 89 Wn. App. at 603 n.19.
Gronquist confines his argument to the tobacco incident and does not discuss the other infractions which form the basis for the 657 violation. But the position he advances could be interpreted to require the relitigation of every predicate infraction in the serious infraction hearing to comply with minimum due process. Plainly, every predicate infraction forming the basis for such a 657 violation need not be relitigated when the inmate has not availed himself or herself of the administrative procedures available to challenge an underlying minor infraction. On res judicata principles, the decisions on those minor infractions for which administrative relief has not been sought by the inmate are final. Cf. Reninger v. Department of Corrections, 134 Wn.2d 437, 449-50, 951 P.2d 782 (1998) (“ ‘When an administrative agency is acting in a judicial capacity and
We next turn to the minimum due process to which Gronquist is entitled at the 657 hearing. As the parties here agree, a 657 violation is a serious infraction and minimum due process rights attach. Gronquist received notice of the claimed 657 infraction prior to the hearing. After the hearing, he received a report which indicated the evidence relied upon and the reasons for the disciplinary action. The transcript of the 657 hearing also verifies and documents Lieutenant Schneider’s explanation of his reasons for denying Gronquist’s request to call witnesses at the 657 hearing. See Ponte v. Real, 471 U.S. 491, 497, 105 S. Ct. 2192, 85 L. Ed. 2d 553 (1985) (requires prison officials to provide reasons for denying a prisoner’s request to call witnesses and allows prison officials the choice of explaining their decision at the hearing or at some later time). See also WAC 137-28-300(6) (c) (hearing officer shall document on written record the reasons for denial of in-person testimony requested in writing by prisoner). Lieutenant Schneider explained to Gronquist alleged errors as to the minor infractions were irrelevant in the 657 hearing, the only pertinent issue being whether Gronquist had been determined guilty of four general infractions within a six-month period.
Gronquist essentially asserts here that he was entitled to present witnesses at the 657 hearing to relitigate collateral issues regarding the tobacco incident. Some of the witnesses allegedly would have testified as to the functioning of his cell’s call-out button. We hold the Department’s refusal to allow Gronquist an opportunity to relitigate collateral matters to his general infraction in a 657 hearing did not constitute a deprivation of minimum due process and, therefore, is not a constitutional error.
Initially, because a minor infraction does not result in a loss of liberty, but at most disciplinary segregation, constitutional due process does not attach for Gronquist’s minor infractions. Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995) (indicating constitutional due process is not triggered by prison discipline which falls within the expected parameters of a court imposed sentence). Thus, regardless of the procedures utilized in the minor infraction hearings, Gronquist’s constitutional rights were not violated by those proceedings. Gronquist’s due process rights attach only at the time of the hearing on his serious infraction, the 657 violation.
With respect to the tobacco incident specifically, Gronquist was afforded what process he was due under Department regulations. For those prior minor infractions, he was not entitled to minimum due process, as that term of art is defined. For those infractions, he was entitled to the process derived from administrative regulations. See, e.g., WAC 137-28-230(4) (requiring guilt determination, with or without an informal hearing, within five days of the filing of general infraction report); 137-28-250 (providing appeal procedures regarding general infraction guilt determination); 137-28-380 (providing for inmate appeal of hearing officer decision to superintendent). Though he was not present at the initial disposition of his infraction, he had a
Gronquist contends now that he was entitled to due process beyond that allowed in administrative regulations for general infractions if those general infractions constitute the basis for a serious infraction. We disagree. Gronquist’s contention has been rejected in state and federal law both as to culpability and enhanced sentences.
In the criminal setting, the United States Supreme Court has held defendants do not have a constitutional right in federal sentencing proceedings to challenge prior convictions used to prove the elements of crimes or to enhance sentences, unless the challenges aim at the entire denial of the right to counsel.
Likewise, in our interpretation of the Persistent Offender Accountability Act (Initiative 593), Washington’s so-called Three Strikes Law, we have held a defendant may not challenge the underlying convictions forming the basis for a life sentence if they are facially valid. See State v. Manussier, 129 Wn.2d 652, 682, 921 P.2d 473 (1996) (holding “there is no provision in the SRA [Sentencing Reform Act of 1981], or in Initiative 593 [Persistent Offender Accountability Act] itself, for a separate jury trial on the issue of prior convictions or the constitutional validity of those prior convictions,” and noting “the State need not prove the constitutional validity of a defendant’s prior convictions unless they had been previously declared unconstitutional or were facially unconstitutional.”), cert. denied, 520 U.S. 1201, 117 S. Ct. 1563, 137 L. Ed. 2d 709 (1997). See also State v. Thorne, 129 Wn.2d 736, 781-84, 921 P.2d 514 (1996) (noting in sentencing under the persistent offender section of the SRA the trial court determines the defendant’s criminal history by a preponderance of the evidence, and holding the only two relevant inquiries for such sentencing court are “whether certain kinds of prior convictions exist and whether the defendant was the subject of those convictions . . .” id. at 783).
Custis, Lewis, and Nichols, as well as Manussier and
In addition to arguing his right to present witnesses at his serious infraction hearing on minimum due process grounds, Gronquist asserts the protections of Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980), and United States v. Mendoza-Lopez, 481 U.S. 828, 107 S. Ct. 2148, 95 L. Ed. 2d 772 (1987), should apply to his case. Gronquist contends Baldasar held a prior uncounseled misdemeanor conviction could not convert a second misdemeanor into a felony under Illinois’ recidivist law, even though the misdemeanor conviction was initially valid. He suggests Nichols merely distinguished Baldasar, but the United States Supreme Court was more direct in its assessment of Baldasar, stating:
Today we adhere to Scott v. Illinois, [440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979)], and overrule Baldasar. Accordingly we hold, consistent with the Sixth and Fourteenth Amendments of the Constitution, that an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.
Nichols, 511 U.S. at 748-49 (footnote omitted). Thus, under federal law, since Gronquist’s due process rights in the minor infraction proceeding were not violated, using those infractions in the subsequent hearing on the serious infraction cannot be unconstitutional.
The Court declined, however, to enumerate which procedural errors are “so fundamental that they may functionally deprive the alien of judicial review, requiring that the result of the hearing in which they took place not be used to support a criminal conviction.” Id. at 839 n.17. The Court noted, however, “in the context of criminal proceedings, that ‘some errors necessarily render a trial fundamentally unfair’ .” Id. The court then listed use of coerced confession, adjudication by a biased judge, mob violence, and knowing use of perjured testimony as circumstances constituting fundamental unfairness, noting “[wjhile the procedures required in an administrative proceeding are less stringent than those demanded in a criminal trial, analogous abuses could operate, under some circumstances, to deny effective judicial review of administrative determinations.” Id.
Such onerous abuses are not present here, however. Furthermore, Mendoza-Lopez does not address circumstances similar to inmate disciplinary proceedings, or the day-to-day operation of prisons to which the Supreme Court has deferred as peculiarly within the province and professional expertise of corrections officials. See, e.g., Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (citing cases deferring to prison officials’ determinations); Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995) (noting the limitation of inmates’
Finally, Gronquist also fails to demonstrate a nonconstitutional error resulting in a complete miscarriage of justice. In re Personal Restraint of Cashaw, 123 Wn.2d 138, 148, 866 P.2d 8 (1994). Frison officials are afforded greater opportunity to impose discipline in the context of minor infractions in order to preserve appropriate control of prisoner behavior and maintain institutional safety and order. A system of progressive discipline, as envisioned by general infractions and a serious violation like the 657 violation, advances such policy. Every minor institutional infraction cannot be litigated like the trial of the century. Gronquist was afforded an opportunity to contest the imposition of discipline in the tobacco incident and the other general infractions. That is all the law requires. He was afforded minimum due process in the 657 hearing; he had the opportunity to know the allegation against him and to appropriately contest whether he had actually been found culpable for four predicate minor infractions within
CONCLUSION
Gronquist fails to establish that he is entitled to relief in his PRE There is no basis to his contention he is entitled to relitigate underlying minor infractions in a serious infraction proceeding under WAC 137-28-260(657).
We reverse the decision of the Court of Appeals and deny Gronquist’s PRE
Guy, C.J., Durham, Smith, Johnson, and Alexander, JJ., and Dolliver, J. Pro Tern., concur.
Madsen, J., concurs in the result.
‘General infractions” are minor infractions whose violation may result in sanctions involving the loss of privileges. WAC 137-28-230 indicates such infractions may be resolved by a staff member in an “on-site adjustment” or summary discipline (where no report is filed, such incident may not be considered in a 657 serious infraction Calculation, see WAC 137-28-230(1)), without a hearing, see WAC 137-28-230(4)(b), or in an informal hearing where witnesses and documentary evidence are allowed, see WAC 137-28-230(4)(c). WAC 137-28-240 lists the sanctions imposed for general infractions: (1) reprimand or warning; (2) issuance of a written order to cease a problematic behavior; (3) loss of a privilege(s); (4) room or cell confinement (with exceptions) not to exceed 10 days; (5) up to 120 hours of extra work duty.
“Serious infractions,” listed in WAC 137-28-260, are those which may result in a loss of good conduct time credits, that portion of a prisoner’s potential reduction to minimum term which is authorized by RCW 9.95.070 and 72.09.130. See WAC 137-28-160. More extensive process is afforded prisoners on serious infractions. See WAC 137-28-290 and 300.
The other general infractions involved unauthorized possession of contraband, for which Gronquist received a sanction of three days’ cell confinement, unauthorized communication with another prisoner in another section of the facility, for which Gronquist was given a sanction of three days’ cell confinement, and failure
Each cell at the Clallam Bay facility is equipped with a call-out button which alerts a corrections officer to an emergency or to a prisoner’s need to leave the cell for some other reason. We note the record indicates no work orders requesting repair of the call-out button in question existed contemporaneously with the events here.
Gronquist’s November 27, 1996 appeal to Superintendent Wright of Lieutenant Long’s November 18, 1996 decision denying Gronquist’s appeal, appears to have been untimely. WAC 137-28-380(1) requires appeals to the superintendent of a hearing officer’s decision must be filed with the clerk within 24 hours (excluding weekends and holidays) of the inmate’s notice of such decision.
In his Court of Appeals brief at 8-9, Gronquist argued the unauthorized communication infraction should not have been considered a general infraction. See WAC 137-28-230(1) and (2). The Court of Appeals concluded that because some general infractions require immediate intervention by corrections officers, “[prison] [s]ecurity would be compromised if an officer who saw a general infraction had to choose between immediate on-site adjustment and filing [a general] infraction report.” In re Personal Restraint of Gronquist, 89 Wn. App. 596, 605, 950 P.2d 492 (1997). Indeed, Gronquist’s interpretation would require the anomalous result of a lesser consequence for more egregious conduct which merited immediate intervention by an officer. In any event, the incident resulted in a written general infraction report, a finding of guilt, and a sanction of three days’ cell confinement. Id. at 605. Thus, the 657 hearing at issue properly considered four separate general infraction incidents which were reported in writing and occurred within six months. WAC 137-28-260(657).
The Court of Appeals concluded the Department of Corrections did not violate Gronquist’s due process right to attend the hearing because that right was provided under applicable regulations and was not constitutionally required. Gronquist, 89 Wn. App. at 606. See also WAC 137-28-140.
Factual determinations of prison officials must stand if there is “some evidence” in the record to support the prison disciplinary decision. Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455-56, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985) (appropriate evidentiary standard is the examination of the record for “any evidence” that could support the conclusion reached by the disciplinary board to revoke good time credits); see also In re Personal Restraint of Johnston, 109 Wn.2d 493, 497, 745 P.2d 864 (1987) (citing Reismiller, 101 Wn.2d at 295-96).
The Department submitted statistics on the number of general and serious infractions issued during 1997: in fiscal year 1997, there were 31,629 general infractions and 22,143 serious infractions issued in its institutions. Six hundred eighty-nine 657 violations were issued in fiscal year 1997; and 487 had been issued as of March 27 in fiscal year 1998. The Department estimates total staff time spent processing an average general infraction is estimated at approximately one hour, and for an average serious infraction approximately two hours. The Department also suggests the administrative costs for relitigating the general infractions involved in each 657 hearing would be high. A University of Washington study of its disciplinary system estimated the cost per year at a single medium-range security Washington State prison for minor infractions (ac
Gronquist explained the witnesses he requested were for the purpose of challenging the guilt determinations in two of the minor infractions at issue. Hr’g Tr. (Mar. 31, 1997) at 2-6. As guilt had already been determined as to those infractions and the appellate process completed, such testimony (by way of attempting
The defendant may, of course, however, challenge the state convictions in state court or through federal habeas review in a separate proceeding. Custis, 511 U.S. at 497.
We note the analogy to enhanced punishments under the Sentencing Reform Act of 1981 (SRA) as well. In State v. Ammons, 105 Wn.2d 175, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed. 2d 351 (1986), we upheld the use of prior criminal convictions to establish criminal history, a key sentencing factor under the SRA:
We hold that the State does not have the affirmative burden of proving the constitutional validity of a prior conviction before it can be used in a sentencing proceeding. However, a prior conviction which has been previously determined to have been unconstitutionally obtained or which is constitution*404 ally invalid on its face may not be considered. Constitutionally invalid on its face means a conviction which without further elaboration evidences infirmities of a constitutional magnitude.
Id. at 187-88 (citations omitted). See also State v. Morley, 134 Wn.2d 588, 614-20, 952 P.2d 167 (1998) (applying the above language and holding prior convictions in general courts-martial counted toward a defendant’s criminal history for sentencing purposes).
Gronquist also asserts our state constitution, in article I, section 3, providing the right to due process, and section 14, prohibiting cruel punishment, provides more protection than the federal constitution, and he should be afforded such enhanced protection. Although Gronquist cites State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808, 76 A.L.R.4th 517 (1986), he fails to engage in the analysis required by that case. We decline to reach his state constitutional argument. See State v. Ortiz, 119 Wn.2d 294, 302, 831 P.2d 1060 (1992) (noting the six Gunwall factors must be addressed before we will undertake state constitutional analysis); Thorne, 129 Wn.2d at 770 (declining to consider application of state constitution where defendant failed to engage in Gunwall analysis).
Although Gronquist asserted errors at the 657 hearing regarding two of the prior general infraction determinations, he admitted he had indeed been found guilty of the four general infractions within the necessary six-month period. Hr’g Tr. (Mar. 31, 1997) at 5-6.
Dissenting Opinion
(dissenting) — Although the majority acknowledges Gronquist’s due process entitlement includes the right to call witnesses at a serious infraction hearing,
Prison disciplinary proceedings are reviewed against an arbitrary and capricious standard, testing whether the petitioner was denied a fundamentally fair hearing. In re Personal Restraint of Reismiller, 101 Wn.2d 291, 294, 678
Although the rights of prisoners are not those of free citizens, prisoners nevertheless retain certain core constitutional protections, including the Fourteenth Amendment’s guarantees against deprivation of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). In particular the prisoner’s constitutional right to not be deprived of good time credit
Gronquist appropriately claims entitlement to more process when faced with loss of good time credit in a serious infraction hearing than those required for a minor infraction proceeding. WAC 137-28-230(4)(b) (sanction may be imposed for a minor infraction without a hearing). At issue is the process due Gronquist for an alleged violation of WAC 137-28-260(657) which transforms the accumulation of four or more minor (general) infractions during a six-month period into a serious one.
Although the majority concedes essential procedural guarantees attach to prospective loss of good time credits in a serious infraction hearing, Majority at 397, it renders those guarantees meaningless by foreclosing any right of the prisoner to assert them.
Deprivation of the essential elements of that process due, including the fundamental right to call witnesses, is disguised by the language of the majority which consistently refers to Gronquist’s desire to “relitigate” the general infractions. Majority at 391, 398, 399, 401, and 407. Since the word “litigate” connotes a lawsuit in a court with attendant due process,
Moreover the majority uncritically accepts the Department of Corrections’ argument that the determining factor in this case is the “substantial administrative burden”
Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases.
Id. (emphasis added); see also Dawson, 92 Wn.2d at 397. Therefore if an inmate’s due process right to call witnesses is to be denied, prison officials must exercise their discretion in light of the particular circumstances of each individual case, usually providing the inmate with reasons for denying this right. Only by carefully weighing the hazards of each specific situation before denying an inmate’s right to call witnesses is that right rendered meaningful. Conversely, imposition of a blanket rule denying all inmates the right to call witnesses in disciplinary proceedings based on a general assertion of institutional safety renders the due process rights outlined in Wolff illusionary.
Notwithstanding, the majority erroneously endorses the general “substantial administrative burden” the Department of Corrections alleges would result if witnesses were heard at each 657 hearing as a hazard sufficient to deny any inmate the right to call witnesses without case-specific factual predicate. Majority at 398-400. The majority’s rea
Furthermore the majority falsely equates a “substantial administrative burden” with a hazard to institutional safety. Normally an administrative burden does not pose any risk to safety in a correctional institution. It is a fiscal burden insufficient to deprive one of that process which is his constitutional due. The majority’s argument is therefore tantamount to violating inmates’ rights merely because of a reluctance to hire an adequate number of staff. But mere administrative convenience should not be allowed to trump constitutional entitlements. Such is also clearly contrary to the plain language of Wolff which requires a real and specific threat to institutional safety rather than mere general unwillingness to provide staff as justification to abridge an inmate’s right to call witnesses on his own behalf.
The majority analogizes to federal sentencing proceedings and the Persistent Offender Accountability Act (the “three strikes” law), claiming in those situations the defendant does not enjoy the right to challenge prior convictions when sentenced. Majority at 403. It argues support for its decision, contending “the due process rights in prison disciplinary proceedings are much less extensive than those which apply in criminal prosecutions.” Majority at 404. However in the case of sentencing, a criminal defendant has already been afforded full due process for. each prior conviction, whereas in the present case Gronquist had no such right. It is precisely for this reason we must protect the right of the prisoner to call witnesses on his own behalf absent fact-specific, compelling circumstances which render such process “unduly hazardous to institutional safety or correctional goals.” Wolff, 418 U.S. at 566. As Gronquist was denied the fundamental right to call witnesses on his own behalf to avoid additional confinement, I
A hearing under WAC 137-28-260(657) for a serious infraction shall be referred to as a “657 hearing.”
See Black’s Law Dictionary 694 (6th ed. 1990) (“ ‘Good time’ credit is awarded for good conduct and reduces period of sentence which prisoner must spend in prison although it does not reduce the period of the sentence itself. Credit allowed on the sentence which is given for satisfactory conduct in prison. Introduced as an incentive for inmates, it has become practically automatically awarded.” (citation omitted)).
However due process could be triggered by a sanction for a general infraction if that sanction resulted in “atypical and significant hardship” beyond those hardships normally experienced in prison. Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).
The majority asserts the principles of res judicata apply to decisions on minor infractions, citing Reninger v. Department of Corrections, 134 Wn.2d 437, 449-50, 951 P.2d 782 (1998). However an administrative determination is not necessarily preclusive. Restatement (Second) of Judgments § 83(2) (1982) (“An adjudicative determination by an administrative tribunal is conclusive under the rules of res judicata only insofar as the proceeding resulting in the determination entailed the essential elements of adjudication,' including . . . (b) The right on behalf of a party to present evidence and legal argument in support of the party’s contentions and fair opportunity to rebut evidence and argument by opposing parties.”); see also Reninger, 134 Wn.2d at 460-61 (Sanders, J., dissenting). Reninger is clearly distinguishable as the plaintiffs in that case “took advantage of numerous procedures that obtain in superior court trials . . . [and] called witnesses on their behalf and cross-examined the State’s witnesses.” Reninger, 134
See Webster’s Third New International Dictionary 1322 (1981) (defining “litigate” as “to carry on a legal contest by judicial process”).