Colvin v. Inslee

• Decision Date: 23 July 2020
• Docket Number: NO. 98317-8,98317-8
• Citation: 195 Wash.2d 879,467 P.3d 953
• Court: Washington Supreme Court
• Parties: Shyanne COLVIN, Shanell Duncan, Terry Kill, Leondis Berry, and Theodore Roosevelt Rhone, Petitioners, v. Jay INSLEE, Governor of the State of Washington, and Stephen Sinclair, Secretary of the Washington State Department of Corrections, Respondents.

195 Wash.2d 879

467 P.3d 953

Shyanne COLVIN, Shanell Duncan, Terry Kill, Leondis Berry, and Theodore Roosevelt Rhone, Petitioners,

v.Jay INSLEE, Governor of the State of Washington, and Stephen Sinclair, Secretary of the Washington State Department of Corrections, Respondents.

NO. 98317-8

Supreme Court of Washington.

Filed July 23, 2020

Nicholas Brian Allen, Attorney at Law, Nicholas Broten Straley, Janet S. Chung, Kimberlee L. Gunning, Columbia Legal Services, 101 Yesler Way Ste. 300, Seattle, WA, 98104-2528, for Petitioners.

Timothy Norman Lang, Office of the Attorney General, 1125 Washington St. Se, Olympia, WA, 98501-2283, John Joseph Samson, Corrections Division, 1125 Washington St. Se, Po Box 40116, Olympia, WA, 98504-0116, for Respondents.

Robert S. Chang, Melissa R. Lee, Seattle University School of Law, 901 12th Ave., Seattle, WA, 98122-4411, for Amicus Curiae on behalf of Fred T. Korematsu Center for Law and Equality.

Nancy Lynn Talner, Antoinette M. Davis, American Civil Liberties Union of Washington, John Ballif Midgley, ACLU of Washington Foundation, Po Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae on behalf of ACLU of Washington Foundation.

Heather Lynn McKimmie, Rachael Elizabeth Seevers, Disability Rights Washington, 315 5th Ave S. Ste. 850, Seattle, WA, 98104-2691, for Amicus Curiae on behalf of Disability Rights Washington.

Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Amicus Curiae on behalf of Seattle Chapter of the National Lawyers Guild.

D'Adre Beth Cunningham, Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Washington Defender Association.

Jose Dino Vasquez, Karr Tuttle Campbell, 701 5th Ave. Ste. 3300, Seattle, WA, 98104-7055, Susanna M. Buergel, Darren W. Johnson, David C. Kimball-Stanley, Paul, Weiss, Rifkind, Wharton, Garrison, 1285 Avenue Of The Americas, New York, NY, 10019, for Amicus Curiae on behalf of Public Health and Human Rights Experts.

Haley Wolcott Sebens, Attorney at Law, Nathaniel Block, Skagit County Prosecuting Attorney's Off., 605 S. 3rd St., Mount Vernon, WA, 98273-3867, Jacquelyn Moore Aufderheide, Kitsap Co. Pros. Office, 614 Division St., Port Orchard, WA, 98366-4691, for Amicus Curiae on behalf of Washington State Association of Counties.

Michael E. McAleenan Jr., Andrea Heidi Brewer, Smith Alling P.S., 1501 Dock St., Tacoma, WA, 98402-3209, for Amicus Curiae on behalf of Washington Association of Sheriffs and Police Chiefs.

Teresa Jeanne Chen, Attorney at Law, 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 98402-2102, for Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

Nikkita Oliver, Attorney at Law, Po Box 20796, Seattle, WA, 98102-1796, Caedmon Magboo Cahill, Office For Civil Rights, 810 3rd Ave. Ste. 750, Seattle, WA, 98104-1627, John Randall Tyler, Perkins Coie LLP, Lauren Jeffers Tsuji, Attorney at Law, Cara Wallace, Attorney at Law, 1201 3rd Ave. Ste. 4900, Seattle, WA, for Amicus Curiae on behalf of Covid-19 Mutual Aid Seattle.

Nikkita Oliver, Attorney at Law, Po Box 20796, Seattle, WA, 98102-1796, Caedmon Magboo Cahill, Office For Civil Rights, 810 3rd Ave. Ste. 750, Seattle, WA, 98104-1627, for Amicus Curiae on behalf of Community Passageways, Surge Reproductive Justice.

Matthew J. Segal, Jamie L. Lisagor, Pacifica Law Group LLP, 1191 2nd Ave. Ste. 2000, Seattle, WA, 98101-3404, for Amicus Curiae on behalf of South Correctional Entity.

Riddhi Mukhopadhyay, Sexual Violence Law Center, 101 Yesler Way Ste. 300, Seattle, WA, 98104-2552, for Amicus Curiae on behalf of Sexual Violence Law Center, Lifewire, King County Sexual Assault Resource Center, Legal Voice, Organization for Prostitution Survivors, National Crime Victims Law Institute.

Elizabeth Hendren, Northwest Justice Project, 401 2nd Ave. S. Ste. 407, Seattle, WA, 98104-3811, for Amicus Curiae on behalf of Northwest Justice Project.

Evangeline Stratton, Anderson York & Stratton PC, 110 Prefontaine Pl. S. Ste. 206, Seattle, WA, 98104-2674, for Amicus Curiae on behalf of York & Stratton Anderson.

Sara B. Amies, Seattle Employment Law Group, PLLC, 705 2nd Ave. Ste. 1200, Seattle, WA, 98104-1798, for Amicus Curiae on behalf of Pioneer Human Services, Seattle/King County COAlition On Homelessness, Revive Reentry Homes & Services, Star Project.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., 206 10th Ave. Se, Olympia, WA, 98501-1311, Counsel for Other Parties.

STEPHENS, C.J

¶1 This matter came before us on a petition for a writ of mandamus from five inmates serving criminal sentences at different Washington Department of Corrections (Department) facilities. We retained jurisdiction because of the extraordinary nature of the relief petitioners seek—and because of the extraordinary danger COVID-19 (coronavirus disease) poses to inmates in Washington's prisons. But mandamus is not the answer for every emergency, and it cannot deliver the relief petitioners seek here.

¶2 Mandamus is a term familiar to attorneys and the judiciary, but not most members of the public. In plain English, petitioners ask the court to force Governor Jay Inslee and Department of Corrections Secretary Stephen Sinclair to reduce the prison population by ordering the immediate release of three categories of offenders. But the writ they seek asks us to encroach on the executive branch and exceed the court's authority; it would require the judiciary to supervise the executive based on policies the legislature never approved, in direct violation of long recognized separation of powers principles. Without a showing an official in the executive branch has failed to perform a mandatory nondiscretionary duty, courts have no authority under law to issue a writ of mandamus—no matter how dire the emergency. The petitioners alternatively seek leave to amend their petition by filing a personal restraint petition. But on the record before us, they have not shown that the respondents have acted with deliberate indifference to the extreme risk that COVID-19 creates for the incarcerated. Amending their mandamus petition would therefore be futile. For these reasons, we dismiss the mandamus action and deny the motion to amend.

FACTS

¶3 The record here differs from a typical case in the Washington Supreme Court. We do not have the benefit of any hearings, factual findings, credibility determinations, or discovery. Rather, the parties agreed on a record that mainly includes descriptions of the prison conditions, expert opinions on the risks that COVID-19 presents in the prison environment, and the petitioners’ declarations as to their individual situations. For purposes of our decision, we accept the petitioners’ factual descriptions as true. The petitioners claim close confinement creates a substantial risk of harm because of the current public health emergency caused by COVID-19. These concerns are legitimate and well founded. The current widely reported medical evidence suggests that the COVID-19 risks of serious complications or death are highest for offenders over age 50 and those with certain preexisting medical conditions, but it can also be serious for younger people and those in good health. And serious outbreaks have occurred at other prisons and jails nationwide.¹

¶4 Concerns about COVID-19 are all the more serious because our understanding of this public health threat is evolving and incomplete. The virus's virulence and severity are unclear because there has been insufficient time to develop accurate, reliable, and widespread testing both for the virus and the presence of its antibodies. Without doubt, the prison system faces a daunting challenge from a serious public health threat.

¶5 Medical experts recommend limiting the spread of the virus by social distancing, frequent hand washing, and wearing masks or face coverings. Experts currently think the virus is unlikely to spread from person to person at a distance of more than six feet, and thus the primary mitigating measure has been social distancing. Based on this advice, beginning in March 2020, the governor has issued several proclamations through his emergency powers, all designed to limit the spread of the virus as much as reasonably possible.

¶6 Prisons are not designed to easily accommodate social distancing. To combat the virus in this setting, the respondents have developed and implemented a multistep plan. The Department issued social distancing guidelines to offenders in early March 2020, started screening visitors on March 6, and stopped visits on March 13, all in an effort to prevent the virus from spreading into facilities. But social distancing is difficult, if not impossible, in some prison settings due to logistics and population. The Department houses the named petitioners in various facilities throughout the state.

¶7 Each petitioner argues that we should grant their immediate release because they fall into one of three categories of risk: (1) those with preexisting medical conditions complicated by COVID-19, (2) those over age 50, and (3) those who already have release dates pending within the next 18 months. Three petitioners fall within the first group. Shyanne Colvin was 7 months pregnant when the petition was filed, and she reported possible complications because she suffered a grand mal seizure and required preventive seizure medication. Leondis Berry is 46 years old and has serious heart conditions; he has had four heart surgeries and needs to use a pacemaker. He reports that he has housing available with his wife upon release. Theodore Rhone is 62 years old and has diabetes

and high blood pressure. Rhone's declaration does not show what his housing situation would be if released.

¶8 In the second category, Terry Kill is 52 years old and reports that he has housing available with his wife. Shanell Duncan falls within the third category. He is 40 years old and has an anticipated release date of December 27, 2020. He...