In re Grantham

• Citation: 168 Wash.2d 204,227 P.3d 285
• Decision Date: 04 February 2010
• Docket Number: No. 82194-1.,82194-1.
• Court: United States State Supreme Court of Washington
• Parties: In the Matter of the Personal Restraint of James W. GRANTHAM, Petitioner.

227 P.3d 285

168 Wash.2d 204

In the Matter of the Personal Restraint of James W. GRANTHAM, Petitioner.

No. 82194-1.

Supreme Court of Washington, En Banc.

Argued October 13, 2009.

Decided February 4, 2010.

Appeal from Pierce County Superior Court; Honorable Grant L. Anderson, J.

David L. Donnan, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioner.

Peter William Berney, Attorney General's Office, Criminal Justice Division, Jay Douglas Geck, Attorney General's Office, Olympia, WA, for Respondent.

CHAMBERS, J.

¶ 1 James Grantham, an inmate, was disciplined for attempting to smuggle tobacco and marijuana into the McNeil Island Corrections Center. He challenges the disciplinary process and the sufficiency of the evidence against him. We take this opportunity to clarify the approach courts must take in such cases and hold that a petitioner seeking relief in a personal restraint petition from prison discipline is not required to make a prima facie showing of prejudice, since no opportunity for judicial review is otherwise available. However, the burden is on the petitioner to show that the disciplinary action was so arbitrary and capricious as to deny a fundamentally fair proceeding. Grantham was not denied a fundamentally fair proceeding. We affirm the Court of Appeals on different grounds and dismiss the petition.

FACTS

¶ 2 Grantham was convicted of first degree murder in 1995 and sentenced to 416 months to be served consecutively to his pending sentence for two counts of second degree rape. In 2007, an investigation at McNeil Island Corrections Center revealed that a corrections officer was bringing contraband into the prison. Once confronted, the corrections officer turned over a plastic bag that contained smoking and chewing tobacco together with a coffee can containing marijuana. The corrections officer did not know the name of the person who gave her the contraband, but had his phone number. The number belonged to Grantham's brother. After a brief investigation, the Department of Corrections filed a discipline notice against Grantham, alleging "[p]ossession, introduction, use or transfer" of tobacco and controlled substances, violations of WAC 137-25-030(603) and (606) respectively. Personal Restraint Pet.App. C. According to the infraction report:

During the course of a HQ Special Investigation Unit (SIU) investigation of staff misconduct at [the McNeil Island Corrections Center (MICC)], information was received and evidence recovered that the staff member under investigation was introducing contraband into MICC. This staff member turned over one plastic bag of contraband to the SIU unit that contained two (2) large Top tobacco tins, five (5) cans of Grizzly chew tobacco, one (1) large bag of Gambler tobacco and one (1) jar of Folgers coffee. Inside the [F]olgers' jar was a package wrapped in plastic and duct tape that contained a green leafy substance that later tested positive for marijuana. The staff member who surrendered the package did not know the name of the person dropping off the package in Tacoma, but did have the phone number which was 253-905-0525. This number verified by phone records belongs to the brother of offender James Grantham DOC#703436. This type of drop off to this staff member had occurred on more than one occasion since June 2007. I, knowing offender Grantham's voice overheard offender Grantham tell his brother to buy the coffee and make sure he had it ready for Sunday, then asked his brother if he had gotten the other stuff. Offender Grantham and his brother talked about meeting people to complete deals in Tacoma. Offender Grantham's brother has been alerted on at least one time at MICC by the narcotic K-9.

Personal Restraint Pet.App. D.

¶ 3 The offending corrections officer is never named in the record before us. The conversation overheard by the investigating officer was a phone conversation between Grantham and his brother which never explicitly mentions tobacco or marijuana. It had been recorded by the department. Grantham filed two public disclosure act requests, asking for a copy of the phone conversation the investigating officer referred to and for the officer's investigative reports. It is not clear from the record how the department responded to the request for a copy of the phone conversation, but the department's statement that there were no such investigative reports is attached to the petition. It appears the recording of the phone conversation was not played at the hearing.

¶ 4 Grantham attended the hearing. Based on the investigative report, the hearing officer found Grantham guilty of both counts. He was sanctioned with 25 days disciplinary segregation and a loss of both 90 days good time credit and 7 days of yard privileges. Grantham filed an unsuccessful internal appeal with the superintendent, claiming lack of due process. He then filed this personal restraint petition, claiming that he did not receive due process and that the hearing officer lacked sufficient evidence to find guilt. Grantham stressed that the investigator acknowledged that he and his brother never explicitly discussed marijuana or tobacco. He also argued that the notice was defective because it failed to specify the time and place of his conversation with his brother. He asks that the findings of guilt be expunged, that his good time and long term minimum custody status be restored, that he be returned to a minimum security facility, and that his visiting privileges be restored. The acting chief judge of the Court of Appeals dismissed the petition, mostly based on standards not challenged here. However, he rejected Grantham's argument that he was entitled to know the time and place of the recorded conversation with his brother without reaching the merits, saying "even if the infraction report did not fully satisfy the requirements of WAC 137-28-270, Grantham does not show that he was actually or substantially prejudiced by that deficiency." Order Dismissing Pet. at 3-4.

¶ 5 In his initial ruling, Washington State Supreme Court Commissioner Steven M. Goff noted that the Court of Appeals relied on the actual and substantial prejudice standard, that the standard "does not apply where the petitioner has had no previous opportunity for judicial review," and directed the department to file supplemental briefing "in light of the proper standard of review." Ruling at 2-3. The department filed a vigorous brief arguing its disagreement with the commissioner on the proper standard and contending that, notwithstanding our opinion in In re Personal Restraint of Isadore, 151 Wash.2d 294, 299, 88 P.3d 390 (2004), prisoners facing discipline are still required to meet the Lord¹ prima facie standard when challenging disciplinary decisions. We accepted review. In re Pers. Restraint of Grantham, noted at 166 Wash.2d 1006, 211 P.3d 1029 (2009).

ANALYSIS

ISADORE, HABEAS, AND PRISON DISCIPLINE

¶ 6 We granted review primarily to resolve the apparent dispute as to whether the Lord standard applies to personal restraint petitions where there has been no previous opportunity for judicial review. Personal restraint petitions have evolved from writs of habeas corpus. In order to determine the appropriate threshold prima facie burden to apply, we find it useful to examine the development of personal restraint petitions within that historical context. In re Pers. Restraint of Hagler, 97 Wash.2d 818, 823-24, 650 P.2d 1103 (1982) (describing the history of the personal restraint petition). The United States Supreme Court once said that historically, habeas was limited to determining if the court restraining a person had the jurisdiction to do so. As Justice Marshall put it, "[a]n imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity, if the court has general jurisdiction of the subject, although it should be erroneous." Ex parte Watkins, 28 U.S. (3 Pet.) 193, 203, 7 L.Ed. 650 (1830). Scholars have cast significant doubt on that limitation on the scope of habeas. See, e.g., BADSHAH K. MIAN, AMERICAN HABEAS CORPUS: LAW, HISTORY, AND POLITICS 190-91 (1984).² More than a century later, the Supreme Court rejected Watkins, noting that at common law "restraints contrary to fundamental law, by whatever authority imposed, could be redressed by writ of habeas corpus." Fay v. Noia, 372 U.S. 391, 408, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), overruled in part on other grounds by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). However, the Watkins dictum does emerge from time to time as the basis for limiting the writ. While taking a more expansive view, Justice William Brennan echoed Blackstone's description of habeas as "`the most celebrated writ in the English law.'" Fay, 372 U.S. at 400, 83 S.Ct. 822 (quoting 3 WILLIAM BLACKSTONE COMMENTARIES 129). Borrowing from English authorities, he described it as:

"a writ antecedent to statute, and throwing its root deep into the genius of our common law. . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I."[³]

Id. at 400, 83 S.Ct. 822 (quoting Secretary of State for Home Affairs v. O'Brien, (1923) A.C. 603, 609 (H.L.)). Simply put, habeas has played a critical role in the development of equal justice under law. Justice Brennan said that in the history of habeas:

may be discerned the unceasing contest between personal liberty and government oppression. It is no accident that habeas has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today.

Id. at 400-01, 83 S.Ct. 822 (...