IN RE HIGGINS

• Decision Date: 22 July 2004
• Docket Number: No. 74253-7.,74253-7.
• Parties: In re the Matter of the Personal Restraint Of David HIGGINS, Petitioner.
• Court: Washington Supreme Court

95 P.3d 330

152 Wash.2d 155

In re the Matter of the Personal Restraint Of David HIGGINS, Petitioner.

No. 74253-7.

Supreme Court of Washington.

Argued February 26, 2004.

Decided July 22, 2004.

Suzanne Lee Elliott, Seattle, for Petitioner.

Jennifer L Treadwell Karol, Carol A. Murphy, Attorney General of Washington, Olympia, for Respondent.

IRELAND, J.

In this case, we review whether the Department of Corrections (DOC) has jurisdiction to rehear an infraction while a personal restraint petition (PRP) concerning the infraction is pending in the appellate court, and whether double jeopardy principles preclude the rehearing. We hold that DOC has jurisdiction to conduct a rehearing and that DOC's rehearing of the infraction does not violate the principles of double jeopardy. Therefore, we affirm the Court of Appeals' decision.

FACTS

On July 9, 2002, prison authorities issued a serious infraction report charging petitioner, David Higgins, an inmate at Airway Heights Correction Center, with attempting to introduce marijuana into the prison facility in violation of WAC 137-28-260(infraction 603). Prison officials learned through three confidential informants that Higgins had sent $300 to Ann Allen, directing her to use the money to buy and transfer marijuana to another inmate, Shane Morris.

The hearing officer relied on the written infraction report and information given by confidential informants in finding petitioner guilty of the charge. As a result, the hearing officer deducted 270 days out of petitioner's good conduct time credit and sentenced him to 20 days of disciplinary segregation and 10 days of isolation.

In March 2003, petitioner filed a PRP in Division Two of the Court of Appeals, asking the court to overturn the infraction and restore him to his previous status. The court directed the DOC to respond to the merits of petitioner's PRP within 30 days. The DOC responded by expunging the challenged infraction and requesting the court's permission to conduct a rehearing. Petitioner filed a response objecting to the DOC's voluntary action to expunge and request for a rehearing.

On June 24, 2003, the Court of Appeals dismissed petitioner's PRP and granted the DOC permission to rehear petitioner's disciplinary infraction.

Petitioner filed a motion for discretionary review with this court, seeking review of the Court of Appeals' unpublished order dismissing his PRP and permitting the DOC to rehear his infraction. We granted review.

On August 14, 2003, the DOC reheard the infraction while the motion for discretionary review was pending in this court. The hearing officer found petitioner guilty and imposed sanctions of 130 days loss of good conduct time credit, 20 days of disciplinary segregation, and 10 days of isolation.

Subsequently, petitioner filed a motion to supplement the record with the record of the August 14 rehearing and to amend his supplemental brief to include a request that this court declare the DOC's rehearing void. The DOC did not object to the request to supplement the record but opposed the request to amend the supplemental brief.

ISSUES

(1) Should the court grant petitioner's motion to supplement the record and amend his supplemental brief?

(2) Does the DOC have the jurisdiction to expunge a prison infraction and conduct a rehearing of the infraction while the petitioner's PRP challenging the infraction is pending in the appellate court?

(3) Does the DOC's rehearing of the infraction violate principles of double jeopardy?

STANDARD OF REVIEW

We review questions of law de novo. Rivett v. City of Tacoma, 123 Wash.2d 573, 578, 870 P.2d 299 (1994).

ANALYSIS

(1) Should the court grant petitioner's motion to supplement the record and amend his supplemental brief?

Petitioner seeks to supplement the record, pursuant to RAP 9.10,¹ with documents pertaining to the rehearing and the subsequent sanctions imposed by the hearing officer. Petitioner also seeks to make additional arguments by way of a supplemental brief after the initial PRP was already filed, to include a request to declare the DOC's rehearing and reimposition of sanctions void. DOC stipulates to the supplementation of the record, and we therefore grant petitioner's motion to supplement the record. DOC opposes petitioner's request to amend his supplemental brief, but provides no persuasive justification for denial. Under RAP 10.1(h), an appellate court "may in a particular case, on its own motion or on motion of a party, authorize or direct the filing of briefs on the merits other than those listed in the rule." It is appropriate to grant petitioner's motion to amend his supplemental brief pursuant to RAP 10.1(h).

Moreover, the court has inherent authority to consider issues raised in a supplemental brief when such consideration is necessary to a decision on the merits. Shoreline Cmty. Coll. Dist. No. 7 v. Employment Sec. Dep't, 120 Wash.2d 394, 402, 842 P.2d 938 (1992). Here, the issue raised in petitioner's supplemental brief is the propriety of the DOC's rehearing while petition for review is pending in this court. The issue thus goes to the heart of petitioner's case, and it is proper for the court to accept briefing.

(2) Does the DOC have jurisdiction to expunge a prison infraction and conduct a rehearing of the infraction while petitioner's PRP challenging the infraction is pending in the appellate court?

Petitioner claims the DOC lacked authority to expunge his infraction after he filed his PRP in the Court of Appeals challenging the infraction. He also argues that the DOC's rehearing violated his constitutional right to freedom from double jeopardy. The Court of Appeals has reached different conclusions over these issues. In re Pers. Restraint of Leland, 115 Wash.App. 517, 61 P.3d 357 (2003); In re Pers. Restraint of Goulsby, 120 Wash.App. 223, 84 P.3d 922 (2004).

In Leland, a DOC hearing officer found the prisoner guilty of testing positive for unauthorized drugs. The prisoner then brought a PRP seeking relief from the imposed sanctions, including lost good time credit. Leland, 115 Wash.App. at 522, 61 P.3d 357. The DOC reheard the infraction while the prisoner's PRP was still pending rather than respond to the PRP on its merits. Id. at 524-25, 61 P.3d 357. The Court of Appeals, Division Three, focused on RAP 16.3(c) and RAP 16.11(b) in concluding that "Title 16 RAP confers upon the Court of Appeals (1) original jurisdiction of personal restraint petitions, and (2) the authority to direct or order the steps necessary to decide the appropriate disposition of the petition." Id. at 527, 61 P.3d 357. In addition to RAP 16, the court relied on the principles of double jeopardy in holding that the "DOC lacks jurisdiction or authority to summarily conduct a rehearing of a personal restraint petition pending in the Court of Appeals." Id. at 529-30, 532-33, 61 P.3d 357.

Despite involving similar circumstances, the Court of Appeals, Division One, rejected the Leland reasoning. Goulsby,120 Wash.App. at 225,84 P.3d 922. There, the inmate, Charles Goulsby, was found guilty of arranging for controlled substance to be brought into prison. Id. Goulsby filed a PRP seeking to recover the good time credits he lost as a result of the infraction. Id. In response, the DOC expunged the infraction from the record and asked the court's permission to hold a rehearing. Id. The Goulsby court disagreed with Leland primarily because the Leland court failed to consider RAP 16.4(d) in its analysis. 120 Wash.App. at 228,84 P.3d 922. Relying on RAP 16.4(d) and the distinctions between prison disciplinary hearings and criminal prosecutions, the Goulsby court held that the DOC had jurisdiction to conduct a rehearing and that neither double jeopardy principles nor due process principles were violated by the rehearing. Id. at 228-29, 84 P.3d 922.

In the present case, the Court of Appeals, Division Two, in an unpublished order, also rejected Leland. The Higgins court specifically disagreed with the Leland court's position that double jeopardy principles applied to prison disciplinary hearings. In disagreeing with Leland, the Higgins court pointed to several federal cases that found that double jeopardy did not bar a rehearing of a prison proceeding where the evidence introduced at the initial prison hearing was insufficient.

Petitioner argues that we should adhere to Leland and reverse the Court of Appeals. He argues that DOC lacks the jurisdiction to conduct a rehearing.

The Leland court cited to RAP 16.3(c) and RAP 16.11(b). Leland, 115 Wash.App. at 526-27, 61 P.3d 357. RAP 16.3(c) provides: "[t]he Supreme Court and the Court of Appeals have original concurrent jurisdiction in personal restraint proceedings in which the death penalty has not been decreed." RAP 16.11(b) grants the chief judge the authority to determine "at the initial consideration of the petition the steps necessary to properly decide on the merits the issues raised by the petition."

While RAP 16.3(c) and 16.11(b) support the proposition that appellate courts have exclusive jurisdiction over PRPs, these two sections of RAP 16, however, do not "address relief that can be granted outside of the personal restraint procedure." Goulsby, 120 Wash.App. at 228, 84 P.3d 922. For instance, RAP 16.3(c) and RAP 16.11(b) do not preclude other governmental agencies and departments from resolving petitioners' issues through alternative forms of relief. RAP 16.4(d), which the Leland court failed to consider, states that the "appellate court will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances. Here, the DOC's decision to expunge the record in response to petitioner's PRP and to hold a rehearing was an adequate remedy under the circumstances. We hold that a pending PRP does not operate to divest the DOC of jurisdiction or authority to conduct a rehearing of the infraction.

(3) Does the DOC's...