Grisby v. Herzog, 71904–1–I.

Decision Date26 October 2015
Docket NumberNo. 71904–1–I.,71904–1–I.
Citation190 Wash.App. 786,362 P.3d 763
CourtWashington Court of Appeals
Parties Henry GRISBY III, Respondent, v. Robert HERZOG, Superintendent, Monroe Correction Complex, Bernard Warner, Secretary, Department of Corrections, Appellants.

Ronda Denise Larson, Assistant Attorney General–Corrections D, Olympia, WA, for Appellants.

Robert Charles Boruchowitz, Seattle University School of Law, Seattle, WA, for Respondent.


¶ 1 The procedural protection due to an individual who faces revocation of community custody status includes, in some cases, the right to be represented by counsel at the revocation hearing. Whether counsel is appropriate in a particular case is up to the discretion of the hearing authority. We disagree with a previous Court of Appeals opinion allowing the Department of Corrections to exclude counsel from all such hearings.


¶ 2 Respondent Henry Grisby was convicted in 2010 for delivering cocaine. The standard sentencing range for his offense would have been 60 to 120 months. Instead, the court imposed a prison-based special drug offender alternative sentence of 45 months of confinement and 45 months of community custody. See RCW 9.94A.660(3) ; RCW 9.94A.662. The sentence included, as required by the statute, a condition that Grisby not use illegal controlled substances and a condition requiring him to submit to urinalysis. RCW 9.94A.662(1).

¶ 3 In January 2013, having completed 45 months in confinement, Grisby was released into community custody.

In that new status, he continued to be supervised by the Department of Corrections. See RCW 9.94A.704(1). The sentencing statute provides that if the Department finds that the offender has willfully violated conditions of community custody, "the offender may be reclassified to serve the remaining balance of the original sentence." RCW 9.94A.662(3).

¶ 4 This appeal arises from an incident that occurred in December 2013. Grisby reported to his community custody officer to provide a urine sample. The officer alleged that Grisby violated the terms of his sentence in two ways: by using a device to alter a urine test and by failing to provide a urine sample. Grisby was taken into custody. A revocation hearing was held on January 8, 2014, to determine whether Grisby should be returned to prison to serve the remainder of his sentence, about three years. Grisby was not represented by counsel at this hearing. At the hearing, Grisby asked to call a particular witness who he believed was involved in an investigation pertinent to the alleged violation. With Grisby's permission, the hearing officer spoke to the witness ex parte about the pending investigation. The hearing officer then found Grisby had committed both violations. The hearing officer revoked Grisby's community custody status.

¶ 5 Grisby successfully appealed to the Department's appeals panel. The panel reversed and remanded for a new hearing on the ground that Grisby could not validly agree to allow the hearing officer to have an ex parte contact with the witness.

¶ 6 On February 20, 2014, the Department held a second violation hearing. By this time, Grisby had consulted with attorney Robert Boruchowitz. Boruchowitz, a professor at the Seattle University School of Law, was supervising a student clinic on the right to counsel at the time, and he agreed to work on Grisby's case pro bono with the assistance of his students as Rule 9 interns. At the hearing, Grisby stated that his attorneys had asked him to request appointed counsel for the hearing. He claimed the Department had the obligation to consider such a request on a case-by-case basis "per case law Gagnon v. Scarpelli[1 ] and State v. Ziegenfuss. " [2 ] Apparently familiar with this line of cases, the hearing officer asked Grisby what would separate his case from another case so as to justify appointment of counsel. "What would be the need in your circumstance that would require you to have counsel?" Grisby responded that he faced losing many months of his life back to prison. The hearing officer declined to appoint counsel. The hearing proceeded.

¶ 7 The officer found Grisby "not guilty" of failing to submit a urine test but "guilty" of trying to alter the urine test. Again, the sanction imposed was revocation of Grisby's community custody status. Grisby's appeal to the appeals panel was denied on March 4, 2014. The appeals panel commented that Grisby had not followed the correct procedure for having counsel appointed:

First of all Mr. Grisby, it is obvious by listening to the recording of the hearing, Hearing Officer Paul Ockerman explained very clearly to you the process that your attorney needed to follow if you were to be allowed to have such representation. He asked you if your attorney had submitted a written request to the Hearings and Violations Administrator and you said that he had not. Secondly, Hearing Officer Ockerman gave you the opportunity to continue the hearing to allow for this and you clearly stated that you did not want to do so, stating you believed that you would receive a fair and impartial hearing. You made the decision to proceed with the hearing.

¶ 8 Boruchowitz, representing Grisby, sent a letter to the hearings and violations administrator asking that Grisby's case be remanded for a third violation hearing. The letter alleged that the hearing officer stated erroneously that he lacked the discretion to send Grisby to previously scheduled inpatient treatment. The letter also alleged that Grisby had been denied the right to call as a witness a particular officer who had given a written statement. The officer had reported as unavailable for the February 20 hearing. Boruchowitz argued that the hearing should have been continued to permit Grisby to question the officer about inconsistencies between the officer's statement and the statement of another witness. On April 4, 2014, the hearings and violations administrator granted Grisby's appeal on that ground and remanded for a third hearing.

¶ 9 Boruchowitz wrote to the Department, "We understand that DOC [Department of Corrections] has a process for requesting counsel. We plan to represent Mr. Grisby at the hearing. Please advise us as to the process of requesting to represent Mr. Grisby at his hearing, including any necessary forms." The next day, Ronda Larson, assistant attorney general representing the Department, informed Boruchowitz that his request to represent Grisby at the hearing could not be accommodated. Although the hearing officer and appeals panel had indicated there was a procedure for requesting the right to be represented by counsel at the hearing, Larson's letter categorically negated that possibility. She stated, "In a DOSA revocation hearing, there is no right to counsel. In re Pers. Restraint of McNeal, 99 Wash.App. 617, 635, 994 P.2d 890 (2000)."

¶ 10 Larson's letter continued:

DOSA revocation hearings are legally distinct from probation and parole revocation proceedings in Washington. The latter are prosecuted by the State by way of the county prosecutor. Therefore, it would create an uneven playing field to disallow offenders in probation and parole revocation proceedings to be represented by counsel. Hence, court rule requires offenders to be represented by counsel in such proceedings. See CrR 7.6(b) (requiring counsel at probation revocation hearings).
In contrast, DOSA revocation hearings under the Offender Accountability Act[3 ](OAA) involve a non-attorney corrections officer bringing a violation allegation. The hearing is not in a court before a judge but instead in a conference room before a non-attorney hearings officer. Because neither the offender nor the corrections officer who alleges the violation is an attorney, the contest is among equals.
And the OAA created the administrative hearing system without attorneys and judges for the very purpose of simplifying violation hearings. Prior to the OAA, violations hearings occurred in court before a judge, with both parties represented by counsel. The result was lengthy delays and concomitant lengthy pre-hearing jail time for offenders. This delay was not to the offenders' benefit, and as a result, the legislature adopted the current system by enacting the OAA.

(Footnote omitted). Larson's letter advised Boruchowitz that one attorney would be allowed to attend Grisby's next hearing as an observer if approved in advance, but the attorney would not be allowed to communicate with Grisby at the hearing or during any break.

¶ 11 Boruchowitz immediately filed a petition on Grisby's behalf in Snohomish County Superior Court. The petition asked the court to compel the Department to consider whether to appoint Boruchowitz as counsel for Grisby. Boruchowitz argued counsel was necessary because Grisby was unskilled and had a number of mental health issues that hindered his ability to present his defense effectively on his own. He also asserted that a person facing a revocation hearing is entitled to be represented by retained or pro bono counsel even if the Department in a proper exercise of its discretion denies appointed counsel. The Department opposed the petition.

¶ 12 After a hearing on April 17, 2014, the trial court granted Grisby's request by issuing writs of mandamus and prohibition. The court ruled that the Department was obligated to conduct a case-by-case determination of the need for appointed counsel—not only in Grisby's case, but in all similar cases when a request for a lawyer is made by a person subject to a community custody violation hearing. The court relied on State v. Ziegenfuss, 118 Wash.App. 110, 74 P.3d 1205 (2003), review denied, 151 Wash.2d 1016, 88 P.3d 965 (2004). The order stated:

The Petition for a Writ of Mandamus and Writ of Prohibition is GRANTED. It is hereby ORDERED:
I. The Department of Corrections shall conduct a determination as contemplated by State v. Ziegenfuss, 118 Wash.App. 110 (2003) whether counsel should be appointed for Mr. Grisby to represent

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