In Re Mines
| Decision Date | 02 May 2002 |
| Docket Number | No. 71387-1.,71387-1. |
| Citation | 45 P.3d 535,146 Wn.2d 279,146 Wash.2d 279 |
| Court | Washington Supreme Court |
| Parties | In the Matter of the Personal Restraint Petition of Kenneth MINES, Petitioner. |
Kenneth Mines c/o H.O.M.E., Seattle, pro se.
Thomas M. Kummerow, Washington Appellate Project, Seattle, for petitioner.
Christine Gregoire, Attorney General, Donna Mullen, Asst., Diana Sheythe, Asst., Olympia, for respondent.
After finding Kenneth Mines guilty of two parole violations, the Indeterminate Sentencing Review Board (Board) revoked his parole. In order to appeal his parole revocation, Mines' attorney sought a copy of the hearing tape. However, she was informed that the tape was blank. A request for a new hearing was denied and this personal restraint petition (PRP) followed. The Court of Appeals denied Mines' PRP, holding that though the Board violated RCW 9.95.124 and WAC 381-70-410 by not producing a record of the hearing, Mines had failed to show that he was prejudiced by the absence of a recording.
We hold that neither In re Personal Restraint of Cashaw, 123 Wash.2d 138, 150, 866 P.2d 8 (1994) nor In re Personal Restraint of Shepard, 127 Wash.2d 185, 898 P.2d 828 (1995) requires Mines to demonstrate prejudice from the Board's failure to record his parole revocation hearing in order to obtain a new hearing.
Mines was convicted of second degree murder and found to be a habitual criminal in 1981. He was sentenced to life in prison. The Board set his minimum sentence at 20 years. Mines was paroled in May 1998. The conditions of his parole required, in part, that Mines obey all laws and "[e]nter into and successfully complete any drug and alcohol program" deemed necessary by his community corrections officer (CCO).1 Pursuant to these conditions, Mines' CCO, Suzann Braverman, required that he enroll in a 26-week drug and alcohol out-patient program at Lakeside Milam Recovery Center (Lakeside).
Approximately six months later, Mines was terminated from the Lakeside program for allegedly making unwanted sexual advances toward several female patients. Mines' CCO moved to revoke his parole, specifying three violations: (1) failure to comply with the drug and alcohol treatment required by his CCO; (2) failure to obey the law by harassing Lucy Lotto in violation of RCW 10.14.020;2 and (3) failure to obey the law by harassing Denise Devine in violation of RCW 10.14.020. Mines' parole was suspended pending a hearing by the Board.
A parole revocation hearing was held before Board member Kathryn Bail on November 23, 1998. Mines was present at the hearing and was represented by appointed counsel. The Board heard testimony from Preston Hayes of Lakeside, Lotto, Devine, Braverman, and Mines. Relying on the witnesses' testimony as well as the violation report, the Board found Mines guilty of counts one and two (failure to complete the drug and alcohol program and harassing Lotto), but not guilty of count three (harassing Devine). The Board revoked Mines' parole and fixed his new minimum sentence at 36 months.3
Intending to appeal the Board's decision, Mines retained counsel, Leta Schattauer. Schattauer requested a copy of Mines' hearing tape. The Board replied that it was unable to make a copy of the tape because the "hearing tape [was] blank."4 Pursuant to WAC 381-70-410, which requires the Board to tape record all parole revocation hearings, and Cashaw, Mines requested a new hearing. The Board denied this request, stating that WAC 381-70-410 was only a procedural guideline and created no procedural or substantive right.
Mines, acting pro se, then filed this PRP with the Court of Appeals.5 The Court of Appeals subsequently appointed counsel to represent him. Relying on Cashaw and Shepard, Mines argued that because the Board had not complied with RCW 9.95.124 and WAC 381-70-410 by failing to record his parole revocation hearing, he was entitled to a new hearing.
The Court of Appeals agreed that the Board had violated WAC 381-70-410 and RCW 9.95.124 by failing to record Mines' hearing, but denied Mines' petition because he had not shown that he was prejudiced by the violation. Although acknowledging that the "court in Cashaw and Shepard did not expressly discuss a prejudice requirement, and evaluated those petitions by examining only the requirements of RAP 16.4," the court nonetheless held that both cases had implicitly required the petitioners to demonstrate prejudice in order to prevail.6 Concluding that Mines had failed to demonstrate any prejudice, the Court of Appeals denied his PRP. This court granted Mines' motion for discretionary review.7 Prior to oral argument, the State moved to dismiss the case as moot because Mines had been paroled.
The Board first argues that this case should be dismissed as moot. "A case is moot if a court can no longer provide effective relief." In re Cross, 99 Wash.2d 373, 376-77, 662 P.2d 828 (1983). The Board asserts that because Mines has been paroled, there is no need to grant him a new parole revocation hearing. Thus, this court cannot provide him with effective relief. Mines responds that the case is not moot because collateral consequences still exist. Alternatively, Mines asserts that even if the case is moot, this court may still reach the merits of his claim because it presents matters of continuing and substantial public interest.
In Monohan v. Burdman, 84 Wash.2d 922, 925, 530 P.2d 334 (1975), we noted that "the restrictions, limitations, and conditions attached to the usual parole status constitute a form of `custody' falling within the reach of habeas corpus relief." More importantly for Mines' case, this court stated that the potential adverse effects of a parole date cancellation, including the use of that violation when considering continued parole or possible probation, may be sufficient to "retrieve [the] petition from the `limbo of mootness.'" Id. (quoting Parker v. Ellis, 362 U.S. 574, 577, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960) (Warren, C.J., dissenting)). Because of these considerations, the court in Monohan held that the petition was not rendered moot by the petitioner's parole. Id.
Mines asserts that his parole revocation has collateral consequences similar to those discussed in Monohan. He contends that because WAC 381-70-030(4) requires the Board to consider its previous actions during the period of parole when making decisions regarding parole revocation or reinstatement, his prior parole revocation may affect his position should his parole be revoked in the future.
Although Mines' case is arguably distinguishable from Monohan in that Mines' basis for relief is not habeas corpus, but a PRP pursuant to RAP 16.4, the collateral consequences that he may suffer as a result of his prior parole revocation are similar to those mentioned in Monohan. However, we need not decide this question because we conclude that matters of substantial and continuing public interest are presented, which require us to decide the merits of the petition.
A court may decide a technically moot case if it involves "`matters of continuing and substantial public interest.'" Cross, 99 Wash.2d at 377, 662 P.2d 828 (quoting Sorenson v. City of Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972)). When determining the "`requisite degree of public interest,' "courts should consider (1) "`the public or private nature of the question presented,' "(2) "`the desirability of an authoritative determination for the future guidance of public officers, and'" (3) "`the likelihood of future recurrence of the question.'" Sorenson, 80 Wash.2d at 558, 496 P.2d 512 (quoting People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622, 104 N.E.2d 769 (1952)).
In Hart v. Department of Social & Health Services, 111 Wash.2d 445, 449, 759 P.2d 1206 (1988), this court observed that most cases in which appellate courts utilized the exception to the mootness doctrine involved issues of constitutional or statutory interpretation. These types of issues, the court stated, tended to be more public in nature, more likely to arise again, and the decisions helped to guide public officials. Id. It further noted that the exception had not been used in cases involving statutory or regulatory interpretation limited to their facts. Id. Considering the three requirements, we conclude that Mines' case involves matters of continuing and substantial public interest. The Court of Appeals opinion was not limited to the specific facts presented in this case, but included an interpretation of this court's holdings in Cashaw and Shepard. Although the rule enunciated by the Court of Appeals does not address statutory interpretation, it does involve an interpretation of case law. Whether case law has been properly interpreted is analogous to questions of statutory interpretation, which, as we noted in Hart, generally involve issues that are public in nature. Moreover, because the Court of Appeals opinion arguably conflicts with the decisions in Cashaw and Shepard, it is necessary to provide an authoritative determination on the issue to guide both the appellate courts and the Board. Finally, despite the Board's assertion that the specific violation in this case is unlikely to reoccur, it is likely that other violations of state law or regulation addressing parolability issues may occur in the future. Thus, the need to clarify the standard of review in this area remains.
Mines asserts that the Court of Appeals decision conflicts with our holdings in Cashaw and Shepard. He argues that neither Cashaw nor Shepard require a showing of prejudice once a petitioner proves that the Board violated the laws of Washington. We agree.
In Cashaw, this court examined whether a petitioner was entitled to relief where the Board set his minimum term for incarceration so as to coincide with the remainder of the petitioner's maximum sentence without providing the petitioner with notice or an in-person...
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