In re Habeas Corpus Application of Pierpoint

• Decision Date: 01 June 2001
• Docket Number: No. 86,079.,86,079.
• Citation: 271 Kan. 620,24 P.3d 128
• Parties: In the Matter of the Petition of Michael J. Pierpoint for a Writ of Habeas Corpus.
• Court: Kansas Supreme Court

271 Kan. 620

24 P.3d 128

In the Matter of the Petition of Michael J. Pierpoint for a Writ of Habeas Corpus.

No. 86,079.

Supreme Court of Kansas.

Opinion filed June 1, 2001.

Robert E. Wasinger, legal counsel, Department of Corrections, argued the cause and was on the brief for appellant.

Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

The Norton Correctional Facility (NCF) appeals a district court order enjoining NCF from proceeding with a disciplinary hearing against an inmate unless the inmate's retained attorney is allowed to participate in the hearing. NCF claims (1) the inmate was required to exhaust administrative remedies prior to filing a K.S.A. 2000 Supp. 60-1501 habeas corpus petition; (2) under these circumstances, an inmate has no constitutional right to representation by retained legal counsel in a class II disciplinary proceeding; and (3) administrative regulations do not entitle petitioner to the presence of retained legal counsel in this inmate disciplinary hearing.

Michael Pierpoint is an inmate at NCF. On December 16, 1999, NCF charged Pierpoint in Case No. 99-2220 with violating K.A.R. XX-XX-XXX, Unauthorized Dealing and Trading, a class II offense, i.e., Pierpoint purchased from other inmates without permission handicraft items: paper rocking chairs. Pierpoint retained counsel to represent him at the disciplinary hearing, then requested NCF to allow the presence and assistance of his retained counsel at the hearing. In addition, Pierpoint's counsel wrote a letter to Jay Shelton, NCF Warden, requesting to appear on behalf of Pierpoint. Both requests were denied by the warden. The administrative hearing was set for January 5, 2000. Prior to the hearing, Pierpoint filed a K.S.A. 2000 Supp. 60-1501 habeas corpus petition in the Norton County District Court requesting that NCF be restrained from conducting further proceedings in Case No. 99-2220 unless his retained attorney could be present at the disciplinary hearing. The same day, the district court issued a temporary order restraining NCF from taking action against Pierpoint in the pending disciplinary proceeding unless his retained counsel appeared in all phases of the proceedings and assisted him in the preparation of his defense. After a hearing, the district court issued a permanent restraining order directing NCF to allow Pierpoint access to retained counsel at reasonable times in advance of any further proceeding in NCF Disciplinary Case No. 99-2220. The order stated that Pierpoint's retained counsel was to actively participate in presenting Pierpoint's defense, including, but not limited to, argument, examination, and cross-examination. NCF's motion for reconsideration was denied by the district court.

NCF appealed to the Kansas Court of Appeals. The case was expedited and transferred to this court pursuant to K.S.A. 60-1505(e)(2) and K.S.A. 20-3018(c). Our jurisdiction is pursuant to K.S.A. 60-2101.

Exhaustion of an Administrative Remedy

The Secretary of Corrections and NCF note that Pierpoint failed to file a formal grievance form required by K.A.R. XX-XX-XXX and K.A.R. XX-XX-XXX. They contend Pierpoint was not entitled to an injunction in the district court because he failed to exhaust administrative remedies. The Secretary and NFC point out that before conditions of confinement may be reviewed in a habeas corpus proceeding, available administrative remedies must be exhausted. Davis v. State, 211 Kan. 257, 505 P.2d 293 (1973); Case v. Crouse, 210 Kan. 341, 502 P.2d 785 (1972). They assert that the failure to exhaust administrative remedies also bars claims for declaratory and injunctive relief. Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 905-906, 528 P.2d 1232 (1974).

An allegation that a party is required to or has failed to exhaust administrative remedies presents a question of law, and the appellate court's standard of review is unlimited. NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, Syl. ¶ 3, 996 P.2d 821 (2000).

Pierpoint asserts that a party is not required to seek or exhaust administrative remedies, even if such remedies are considered the party's exclusive remedy, if the remedies are inadequate. See State ex rel. Pringle v. Heritage Baptist Temple, Inc., 236 Kan. 544, 549, 693 P.2d 1163 (1985) ("[I]t is important to note that we have held a party need not seek administrative remedies when these remedies are known to be inadequate."); Cussimanio v. Kansas City Southern Ry. Co., 5 Kan. App.2d 379, 385-86, 617 P.2d 107 (1980) ("Exhaustion of administrative remedies is not required when administrative remedies are inadequate."); see also Zarda v. State, 250 Kan. 364, 369, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992) (Plaintiffs should be permitted to seek court relief without first presenting the case to an administrative agency if no purpose would be served by requiring plaintiffs to exhaust administrative procedures.). Pierpoint notes that his request for retained counsel to be allowed to represent him at the disciplinary hearing was denied twice.

Pierpoint contends that his personal experience with NCF's administrative process demonstrates that, as applied to him, the NCF administrative remedies are inadequate because by the time he will receive relief from administrative remedies, he will have received discipline for the charge. Pierpoint refers to a prior disciplinary case filed by NCF against him, Case No. 99-1830, where his request to be represented by retained counsel was denied. Pierpoint's habeas petition states:

"In October of 1999, the Petitioner was charged with a disciplinary violation at the Norton Correctional Facility in Case Number 99-1830. In those proceedings the Petitioner was initially convicted; however, in the process, he was denied his right to have retained counsel of his choice present with him at the disciplinary hearing. The Petitioner was denied his constitutional right to confront and cross-examine the complaining witness. The Petitioner was denied the right to produce witnesses in support of his defense and, at the initial hearing, the evidence against the petitioner was insufficient as a matter of law. The conviction occurred on October 27, 1999. On October 28, 1999, the Petitioner filed a Petition for Writ of Habeas Corpus in the District Court of Norton County, Kansas and obtained a temporary restraining order preventing NCF from enforcing punishment for the conviction. At the same time, the Petitioner pursued his administrative remedies through the Secretary of Corrections. Ultimately, the Petitioner's conviction of the original disciplinary charge was remanded by the Secretary of Corrections with instructions that the Norton Correctional Facility provide Petitioner with a new trial. It was directed that the complaining witness be produced at the new hearing. Again, the Petitioner's request to have his retained counsel of choice present with him at the second disciplinary hearing was denied ... even though, in the Habeas Corpus action in the District Court of Norton County, Kansas, District Judge Charges E. Worden had indicated his concerns about the fact that the Petitioner's earlier request for counsel had been denied."

Case No. 99-1830 was remanded to the disciplinary committee, and Pierpoint was later found not guilty of the violation charged.

Before the district court in this case, Pierpoint's retained attorney argued:

"[D]espite the fact that [Pierpoint] was ultimately found not guilty of his last disciplinary charge, Your Honor, he still received the punishment for it because while he was exhausting his administrative remedies, [NCF] ran him through all the punishment. The only thing they weren't able to do was take the good time credits from him. They did everything else."

The district court asked Pierpoint's attorney to state what punishments had been imposed in the prior disciplinary case even though Pierpont was ultimately found not guilty. Pierpoint's attorney responded that Pierpoint lost privileges for 15 days, and he was moved from one of the most desirable housing units into less favorable housing—a floor reserved for sex offenders. Pierpoint's attorney outlined several other NCF actions he construed as retaliatory actions.

Without setting out its reasons, the district court found that under the circumstances, Pierpoint's failure to exhaust administrative remedies was not an impediment to determining whether Pierpoint had a right to be represented by a retained attorney in the disciplinary hearing in Case No. 99-2220.

In Beaver v. Chaffee, 2 Kan. App.2d 364, 579 P.2d 1217 (1978), inmates of the Shawnee County jail challenged the conditions of confinement in a class action suit. The action had its genesis in separate habeas corpus petitions filed by two plaintiffs. The relief sought was declaratory and injunctive in nature. The petition set out 58 separately numbered claims, including inadequate and overcrowded jail conditions, inadequate and poorly trained jail personnel, improper classification and segregation of inmates, improper exercise programs or rehabilitation programs, poor quality food, vague policies and procedures governing the jail, improper censoring of inmate mail, and inadequate facilities for attorney-client conferences. The district court found the plaintiffs failed to exhaust their administrative remedies, i.e., the inmates had not put their grievances in writing or requested an administrative hearing to the jail staff, or alternatively, the Secretary of Corrections.

The Beaver court recognized the long-standing rule that where administrative remedies are available they must be exhausted before resort may be had to the courts. 2 Kan. App.2d at 369. The court observed that the unique nature of the inmates' complaints did not lend itself to the ordinary disciplinary procedures available at...