Bresolin v. Morris, 43846

• Decision Date: 11 December 1975
• Docket Number: No. 43846,43846
• Citation: 543 P.2d 325,86 Wn.2d 241
• Parties: Bradley Lave BRESOLIN, Petitioner, v. Charles MORRIS, Secretary of the Department of Social and Health Services of the State of Washington, Respondent.
• Court: Washington Supreme Court

Page 241

86 Wn.2d 241

543 P.2d 325

Bradley Lave BRESOLIN, Petitioner, v. Charles MORRIS, Secretary of the Department of Social and Health Services of the State of Washington, Respondent.

No. 43846.

Supreme Court of Washington, Department 1.

Dec. 11, 1975.

Bradley Lave Bresolin, Steven Scott, Walla Walla, Richard Emery, Seattle, for petitioner.

William Collins, Asst. Atty. Gen., Olympia, for respondent.

UTTER, Associate Justice.

Petitioner seeks a writ of mandamus ordering his transfer to the drug treatment program at Western State Hospital. Alternatively, if this motion is denied, he asks for an order adjudging respondent Charles Morris, as Secretary of the Department of Social and Health Services, in contempt of this court for failure to abide by our order entered December 2, 1974. That order directed respondent to 'make available to health authorities portions of correctional institutions under his jurisdiction for the isolation and treatment, at public expense, of petitioner' for narcotic addiction. The primary questions presented by this writ are the extent of petitioner's rights under the December 2, 1974 order and the nature of the proper remedy for this court to enter in enforcement of that order.

The proceedings leading to the entry of the order for isolation and treatment began with a petition filed by Bresolin on August 28, 1973, seeking his discharge from custody and alleging that he had been consistently and arbitrarily denied treatment for his narcotic addiction. Petitioner claimed this treatment was directed by RCW 69.32.090 and the eighth and fourteenth amendments to the United States Constitution. Hearings were held on the merits of the petition and this court referred to the Superior Court for Walla Walla County a series of questions upon which we desired to have evidence taken. Findings of fact were entered by the superior court on September 23, 1974. These findings indicated petitioner, who is now 31, is psychologically addicted to use of narcotic drugs and has been since he was 18, and that he was both physically and psychologically addicted at the times he committed the crimes for which he was imprisoned. His current incarceration resulted from the armed robbery of a narcotics dealer to obtain drugs. He is continuing to take drugs on a weekly to bi-weekly basis while at the penitentiary and these drugs include, occasionally, heroin. Although the diminished dosage he receives has cured his physical dependence, his psychological dependence on drugs remains. At the time the trial court heard testimony, there was no drug counseling available at the penitentiary, nor was there any form of therapy available at the institution to cure or rehabilitate narcotic addicts. The court found the State had the power and duty to provide petitioner treatment under RCW 69.32.090, which should be administered to him in light of his psychological addiction to drugs.

In response to the court's order, petitioner received a letter on March 13, 1975, from respondent's legal counsel informing him that three alternatives were available: (1) transfer to the Washington State Reformatory to be screened for entry into the drug treatment program there which did not include an isolated treatment program; (2) remain at the Washington State Penitentiary and continue to participate in the social therapy program which was not a drug-oriented treatment program and did not include an isolated treatment program; or, (3) wait for establishment of a drug treatment program at the Washington State Penitentiary which was then in the process of being funded for two counselors.

Petitioner, after receipt of this letter, moved to hold respondent in contempt for to have the court order him transferred to an existing drug treatment program at Western State Hospital. Petitioner's motion was withdrawn on May 29, 1975, as he believed he was then eligible for the program at Western State. Following respondent's refusal to transfer him there, petitioner again moved for a writ of mandamus ordering his transfer to the Western State Hospital program, or, if this was denied, an order finding respondent in contempt. It is this last motion that is before us at this time.

Respondent first contends that the court's order of December 2, 1974 focused too closely on certain language of RCW 69.32.090 and that when this statute is considered in the total context of RCW 69.32 and respondent's overall responsibility in administering this state's prisons, it does not require isolation for treatment. Respondent argues he has therefore adequately complied with the order of December 2, 1974 by making available the alternatives set forth in the March 13, 1975 letter.

The applicable statutes provide:

69.32.070 Suspected addicts--Treatment--Isolation. State, county and municipal health officers, or their authorized deputies, who are licensed physicians, within their respective jurisdictions are hereby directed and empowered, when in their judgment it is necessary to protect the public safety, health and morals, to make examinations of persons reasonably suspected of being habitual users of any narcotic drug and to require persons whom they have reason to suspect to be habitual users of any narcotic drug to report for treatment to an approved physician, and continue treatment at his own expense until cured, or to submit to treatment, provided at public expense, until cured, and also to isolate or quarantine habitual users of such narcotic drugs or their derivatives. Such officer, deputy or physician shall make a written finding that such person is an habitual user of a narcotic drug, which finding shall be filed in his office: Provided, That such habitual users shall not be isolated or quarantined until the state board of health shall first, by general regulation, determine that the quarantine or isolation of all habitual users is necessary: Provided, further, That any persons suspected as herein set forth may have present at the time of his examination, a physician of his or her own choosing: And provided further, That the suspected person shall be informed by the health officer of his or her rights under this chapter.

69.32.090 Examination and treatment of convicted persons. Any person convicted under the provision of RCW 69.32.080 or any person who shall be confined or imprisoned in any state, county, or city prison in the state and who may be reasonably suspected by the health officer of being a narcotic addict shall be examined for and if found to be an habitual user of said drugs, or any of them, shall be treated therefor at public expense by the health officers or their deputies who are licensed physicians. The prison authorities of any state, county, or city prison are directed to make available to the health authorities, such portion of any state, county, or city prison as may be necessary for a clinic or hospital wherein all persons who may be confined or imprisoned in any such prison, and who are habitual users of said drugs or their derivatives, may be isolated and treated at public expense until cured, or, in lieu of such isolation any such person may, in the discretion of the board of health, be required to report for treatment to a licensed physician, or submit to treatment provided at public expense, as provided in RCW 69.32.070. Nothing herein contained shall be construed to interfere with the service of any sentence imposed by a court as a punishment for the commission of crime: Provided, That licensed physicians treating any narcotic addict shall, upon beginning said treatment, immediately report the same to the health officer in charge in that jurisdiction, such report to be on forms prescribed by the state board of health, and such report shall give the name of the person receiving such treatment and such other information as shall be deemed necessary by the state board of health.

The order of December 2, 1974 was a final order entered in a different cause, Supreme Court No. 42966. Respondent may only attack that order in a collateral proceeding if it is absolutely void, not merely erroneous. State ex rel. Ewing v. Morris, 120 Wash. 146, 207 P. 18 (1922); State v. Lew, 25 Wash.2d 854, 172 P.2d 289 (1946); State ex rel. Snohomish County v. Sperry, 79 Wash.2d 69, 483 P.2d 608 (1971). A judgment is void only where the court lacks jurisdiction of the parties or the subject matter or lacks the inherent power to enter the particular order involved. Dike v. Dike, 75 Wash.2d 1, 448 P.2d 490 (1968); See State v. Alter, 67 Wash.2d 111, 406 P.2d 765 (1965); Cf. Bergren v. Adams County, 8 Wash.App. 853, 509 P.2d 661 (1973); Lange v. Johnson, 295 Minn. 320, 204 N.W.2d 205 (1973). There is no such defect here and respondent's challenge to the order must fail for that reason.

The large number of persons affected by the issues raised here, however, makes it imperative for this court to dispose of this case on the merits of the arguments as well. Testimony of respondent's expert witness established that, in his opinion, 45 to 50 percent of the prison population at the Washington State Penitentiary were convicted of crimes where drugs were either a primary or secondary factor.

At the outset we take particular note of the legislative command in RCW 72.08.101 that '(t)he director of institutions shall provide for the establishment of programs and procedures for convicted persons at the state penitentiary, which are designed to be corrective, rehabilitative and reformative of the undesirable behavior problems of such persons, as distinguished from programs and procedures essentially penal in nature.' This directive reinforces the specific statutory provisions governing the treatment of addicted inmates. RCW 69.32.090 does not require the isolation of all persons addicted to narcotic drugs. The health authorities are given responsibility under RCW 69.32.070 and .090 to require narcotic addicts to report for treatment at public expense,...