Havener v. Glaser

• Citation: 251 N.W.2d 753
• Decision Date: 11 March 1977
• Docket Number: No. 587,587
• Court: United States State Supreme Court of North Dakota
• Parties: Joseph H. HAVENER, Warden of the North Dakota State Penitentiary, Petitioner, v. Gerald G. GLASER, Judge of the District Court, Burleigh County, Fourth Judicial District, Respondent. Crim.

Page 753

251 N.W.2d 753

Joseph H. HAVENER, Warden of the North Dakota State

Penitentiary, Petitioner, v. Gerald G. GLASER, Judge of the District Court, Burleigh

County, Fourth Judicial District, Respondent.

Crim. No. 587.

Supreme Court of North Dakota.

March 11, 1977.

Syllabus by the Court

1. For the reasons stated in the opinion, it is held that the facts in this case do not trigger the protections afforded by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

2. For the reasons stated in the opinion, a supervisory writ is granted quashing the order of the district court and a writ is authorized directing the warden to more fully comply with appropriate regulations.

Edwin F. Zuern, Special Asst. Atty. Gen., Bismarck, for petitioner.

Houdek & Wolberg, Bismarck, for respondent; argued by Duane Houdek, Bismarck.

ERICKSTAD, Chief Justice.

We are asked by Joseph H. Havener, warden of the North Dakota State Penitentiary, to issue a supervisory writ staying a February 11, 1977, order of the North Dakota district court, fourth judicial district, releasing prisoners Richard Collins and Michael Schroeder from administrative isolation. On February 11, we directed that the order of the district court be stayed until further order of this court, and that the Honorable Gerald G. Glaser, judge of the district court, show cause why the stay order should not be made permanent. A show cause hearing was held at 10:00 a. m. February 17, 1977, before this court.

This matter came to the district court as a petition for a writ of habeas corpus, brought by counsel for prisoners Collins and Schroeder, under Chapter 32-22, N.D.C.C.

Both prisoners were placed in administrative isolation (referred to by the parties as AI) on October 26, 1976, after allegedly being found in possession of marijuana within the confines of the penitentiary 11 days earlier. The AI unit exists pursuant to Section 505, North Dakota State Penitentiary Administrative Regulations (November 28, 1975, as amended February 27, 1976), which reads:

"Pursuant to authority from the Director of Institutions, and effective this date, an Administrative Isolation Unit is established at the North Dakota Penitentiary. This unit will occupy the First Tier, East in the new cell house, formerly designated as Maximum Security. This unit is not to be used as a place of confinement as a punishment for violation of institutional rules. It is intended for more secure housing and control of those few inmates who have not responded to counselling or conventional disciplinary sanctions, and who are flagrantly and chronically disruptive of good order or security. Placement in this unit and operation of the unit will be according to the following rules.

"1. The Warden or, in his absence, the Deputy Warden must approve placement of an inmate in this unit. This will normally be done only after recommendation from an Administrative Isolation Review Committee. However, the Warden or Deputy Warden may approve an emergency placement, to be reviewed by the Review Committee within seventy-two (72) hours, if a week-end intervenes, or within twenty-four (24) hours during a regular work week.

"2. The Review Committee shall be chaired by either the Director of Programs or the Chief Assistant Deputy Warden. It shall consist of three (3) members, one of which must be a staff member of the Programs Department.

"3. Recommendations for placement in this unit may be made to the Review Committee by the Adjustment Board, or by one of the Assistant Deputy Wardens, who may have investigated recommendations from subordinate staff. Recommendations to the Review Committee must be in writing and must be detailed and specific as to reasons for the recommended placement.

"4. Criteria for placement in the unit are:

"a. The inmate has established a chronic inability to adjust to the general Penitentiary population; or

"b. The inmate constitutes a serious and continuing threat to the security of the institution, or to other inmates.

"5. An inmate being considered for placement in the unit shall have all of the same rights and procedural protections as is now afforded by the Adjustment Board.

"6. Inmates confined in Administrative Isolation shall be provided with the following:

"a. Regular institutional clothing;

"b. All regular cell furnishings and personal items, unless the inmate is destructive, suicidal, or pyromanic, in which cases only dangerous items will be removed;

"c. Regular mail and visiting privileges;

"d. Reading material on the same basis as the general population;

"e. All legal services available to the general population;

"f. Exercise periods outside the cell no less frequently than twice weekly for at least one hour each. No more than one prisoner will be allowed out of his cell for exercise at any one time and will shower or clean his cell during this same period;

"g. Medical attention as needed;

"h. A shower no less often than twice a week for a period not to exceed ten (10) minutes;

"i. Radio to the same extent as the general population;

"j. Visits by the Chaplain and other professional staff; and

"k. Food of the same kind and amount as the general population, served in the unit.

"7. Inmates leaving or entering the Administrative Isolation Unit must be thoroughly searched, and shall be escorted to and from their destinations.

"8. A folder record will be established for each inmate upon admission to the unit, and each staff member who talks to each inmate will record the nature of the contact and his impressions and recommendations.

"9. A log record for the unit will be kept by the Cell House Captains and dates and times of visits and inspections will be recorded, as well as any other pertinent information.

"10. The status of every inmate in Administrative Isolation must be reviewed by the Review Committee at least every thirty (30) days. Their recommendations for continuing in the unit, or for release to the general population, must be submitted to the Warden or Deputy Warden with the reasons clearly stated. The inmate shall have the opportunity to personally appear before the committee.

"11. No inmate may remain in the unit for more than three months unless he is personally interviewed by the Warden or Deputy Warden, and the reasons for remaining clearly stated in writing. If an inmate is kept in the unit for as much as six (6) months, he must be personally interviewed by a staff member from the Office of the Director of Institutions, who will report his recommendations and reasons to the Director.

"12. Whenever an inmate is placed in this unit, the Warden shall notify the Director of Institutions in writing with the reasons.

"13. Rules violations by inmates of this unit shall be handled by the regular Adjustment Board with any disciplinary cell time served in the regular Disciplinary Unit."

In compliance with paragraph 10 of the above regulation, the status of both Schroeder and Collins was reviewed on November 26 and December 23, 1976, and on January 18, 1977. The decision was made following each review to retain the prisoners in AI. The reasons given for continuing Schroeder and Collins in AI ranged from a flat recommendation that each "continue in AI with periodic reviews" to a conclusion that the prisoner "is still considered a threat to the security of the institution." Schroeder and Collins maintain that this is not sufficient to provide due process; that the reasons for continuance and identification of criteria and standards employed in reaching the determination must be provided in writing. This position was essentially approved by the district court in issuing the writ.

The court, in its memorandum opinion, relies heavily upon Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In that case, revocation of a State prisoner's good-time credit for satisfactory behavior while in prison, where the right to good-time credit was statutorily created by the State and it recognized that its deprivation was a sanction for major misconduct, the Court found that the prisoner had a Fourteenth Amendment "liberty" interest entitling him to minimum due process procedural rights. Pertinent parts of the district court's memorandum opinion follow:

"The requirements prescribed by the Supreme Court in Wolff are as follows:

"1. Advance written notice of the charges.

"2. Written statement of fact finding as to the evidence relied on and the reasons for the action taken. If personal or institutional safety would be implicated by observing this requirement, such evidence may be excluded, but the statement should indicate the fact of omission.

"3. The prisoner may present evidence on his own behalf unless doing so would be unduly hazardous to institutional safety or correctional good.

"Cross-examination of witnesses, although permissible, is not required, nor is the presence of counsel.

"Even though the prisoner's interests in administrative isolation are not so substantial as would be the case in the loss of good time, there appears no reason why the requirements set forth above could not be observed in such cases except that, since prison security may be involved, there should be no requirement for advance notice. If, however, security needs dictate immediate administrative isolation, the prisoner should promptly thereafter be given a hearing on the matter.

"The procedures followed by the prison authorities fall short of these standards.

"The prisoners should be released from administrative isolation until such time as the standards herein described are followed, unless, as indicated, the threat to security is immediate, in which case the appropriate hearings should promptly follow. It does not appear that there would be any need for immediate confinement in view of the nature of the threat to security described by the Warden.

"The writ will issue accordingly."

In considering whether or not a supervisory writ should issue, we must...