McNabb v. Department of Corrections

• Decision Date: 02 June 2005
• Docket Number: No. 23310-3-III.,23310-3-III.
• Citation: 112 P.3d 592,127 Wash. App. 854
• Court: Washington Court of Appeals
• Parties: Charles R. McNABB, Appellant, v. DEPARTMENT OF CORRECTIONS, an agency of the state of Washington; Joseph D. Lehman, secretary of Department of Corrections, in his official capacity, Respondents.

112 P.3d 592

127 Wash. App. 854

Charles R. McNABB, Appellant, v. DEPARTMENT OF CORRECTIONS, an agency of the state of Washington; Joseph D. Lehman, secretary of Department of Corrections, in his official capacity, Respondents.

No. 23310-3-III.

Court of Appeals of Washington, Division 3, Panel Seven.

June 2, 2005.

John D. Blair-Loy, Attorney at Law, San Diego, CA, Terri D. Sloyer, Attorney at Law, Spokane, WA, for Appellant.

Mary C. McLachlan, Attorney General's Office, Olympia, WA, for Respondent.

KATO, C.J.

¶ 1 Charles McNabb sued the Department of Corrections (DOC) to invalidate its force-feeding policy as unconstitutional, illegal, and invalid and to enjoin it from force-feeding him. The court denied his motion for preliminary injunction and summary judgment and granted summary judgment for DOC. Contending he has the constitutional right to refuse to be force-fed, he appeals. We affirm.

¶ 2 Mr. McNabb is an inmate at the Airway Heights Corrections Center. Before his arrival at the prison on July 12, 2004, he had not eaten voluntarily for five months. Within two days of arriving at the prison, the medical staff inserted a tube into his nose and stomach to force-feed him.¹ Mr. McNabb was force-fed for several days, until he agreed to eat on his own to avoid further force-feeding.

¶ 3 On August 4, 2004, Mr. McNabb moved for declaratory judgment and injunctive relief, claiming DOC's force-feeding policy violated his constitutional right to privacy, including the right to refuse artificial means of nutrition and hydration under article I, section 7 of the Washington Constitution and his common law right to be free from bodily invasion. The court denied his motion and entered summary judgment for DOC. This appeal follows.

¶ 4 Mr. McNabb contends DOC's force-feeding policy violates his right to privacy under article I, section 7 of our state constitution, which states that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Both Mr. McNabb and DOC analyze the issue using the factors in State v. Gunwall, 106 Wash.2d 54, 58, 720 P.2d 808 (1986).

¶ 5 The starting point for determining whether our constitution must be interpreted more broadly than the federal constitution in a given context requires an analysis of the Gunwall factors. The following criteria are relevant to this determination: "(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern." Id. In previous article I, section 7 challenges, our Supreme Court has simply adopted the Gunwall court's analysis of the first, second, third, and fifth factors because they do not vary from case to case. State v. Boland, 115 Wash.2d 571, 576, 800 P.2d 1112 (1990). We will therefore look to only the fourth and sixth Gunwall factors.

¶ 6 The sixth Gunwall factor examines whether the issue is one of state or local concern. "This factor is relevant because our courts are willing to sacrifice national uniformity for greater protection for our citizens where significant privacy concerns are at stake." State v. Audley, 77 Wash.App. 897, 903, 894 P.2d 1359 (1995). But the privacy interest involved here does not involve a subject matter for which national uniformity is necessary. See State v. Silva, 107 Wash.App. 605, 621, 27 P.3d 663 (2001) (stating the State's interest in law enforcement and Washington citizens' privacy interests are matters of state interest or local concern). Thus, the authority to force-feed a prison inmate is a concern that is particularly local in character. The sixth Gunwall factor is met.

¶ 7 But the determinative factor here is the fourth Gunwall factor, preexisting state law. This focuses on the degree of privacy protection Washington has historically afforded to individuals in similar situations. See Gunwall, 106 Wash.2d at 61-62, 66, 720 P.2d 808. Although Washington courts have consistently held article I, section 7 may provide greater protection against warrantless searches and seizures than the Fourth Amendment,² "`[a] determination that a given state constitutional provision affords enhanced protection in a particular context does not necessarily mandate such a result in a different context.'" State v. McKinney, 148 Wash.2d 20, 26, 60 P.3d 46 (2002) (quoting State v. Johnson, 128 Wash.2d 431, 446, 909 P.2d 293 (1996)).

¶ 8 Relying on cases dealing with the informed consent doctrine, Mr. McNabb argues Washington law prohibits unconsented invasions of the body, even if for the alleged benefit of the person. He also relies on In re Guardianship of Grant, 109 Wash.2d 545, 747 P.2d 445, 757 P.2d 534 (1987), as supporting his claim that he has the constitutional privacy right to refuse artificial means of nutrition and hydration. But these cases do not show that greater protection is extended to prisoners under article I, section 7 than under the Fourth Amendment. Indeed, Mr. McNabb cites no cases analyzing a prisoner's expectation of privacy under the Washington Constitution. Because "preexisting state law" is a broad inquiry, see Robinson v. City of Seattle, 102 Wash.App. 795, 810, 10 P.3d 452 (2000), the extent to which Washington law has protected the privacy of prison inmates is also relevant to our review of the fourth Gunwall factor.

¶ 9 Washington courts have determined inmates have a lowered expectation of privacy while in custody. State v. Rainford, 86 Wash.App. 431, 438, 936 P.2d 1210, review denied, 133 Wash.2d 1019, 948 P.2d 387 (1997); Audley, 77 Wash.App. at 904, 894 P.2d 1359 (stating that the Washington Constitution affords no greater protection to an arrestee from warrantless bodily searches than the federal constitution); State v. Baker, 28 Wash.App. 423, 424-25, 623 P.2d 1172 (1981) (allowing routine pat-down searches of prisoners even without articulable suspicion). A diminished right to privacy even extends to probationers and parolees. Rainford, 86 Wash.App. at 438, 936 P.2d 1210.

¶ 10 Although the privacy provision of our state constitution is largely concerned with protecting citizens from unreasonable searches and seizures, no case has suggested that section 7 was intended to afford greater privacy protection to prison inmates than the federal constitution. Thus, we hold there is no basis to conclude that DOC's force-feeding policy violates article I, section 7 of our state constitution.

¶ 11 In any event, our Supreme Court has already recognized that the right to withhold life sustaining treatment, including the right to withhold nasogastric tubes, intravenous feeding and other artificial means of nutrition and hydration, stems independently from the explicit privacy guarantee in article I, section 7 of the Washington Constitution, see Grant, 109 Wash.2d at 553 n. 1, 565, 747 P.2d 445. But it does not support Mr. McNabb's claim that DOC's force-feeding policy also violates his right to privacy. The right to decline force-feeding is not absolute because the State has an interest in protecting the sanctity of the lives of its citizens. In re Welfare of Colyer, 99 Wash.2d 114, 122, 660 P.2d 738 (1983).

¶ 12 The State has an interest in preserving life and preventing suicide. Grant, 109 Wash.2d at 556, 747 P.2d 445 (citing Colyer, 99 Wash.2d at 122, 660 P.2d 738). Those interests are implicated here. Mr. McNabb is not suffering from any terminal and incurable illness. He has stated his reasons for not eating:

I am declining to eat for personal reasons. I am competent to make this choice. I have not been declared incompetent. I am deeply committed to that decision for that reason I have consistently declined to eat, except under threat of force-feeding, for almost six months. I am not using my fast as a means to seek or ask for any special privileges or favors or otherwise attempt to manipulate the system. My only wish is for my personal decision not to eat to be respected and to be left in peace for my fast to take its course.

Clerk's Papers at 7.

¶ 13 Mr. McNabb claims he is not attempting to commit suicide. He says he is merely allowing nature to take its course. But "[i]n the popular, as well as the legal, sense suicide means ... the death of a party by his own voluntary act." Campbell v. Order of Washington, 53 Wash. 398, 403, 102 P. 410 (1909). It is important to note his situation is not one where he is suffering from a terminal and incurable illness and thus chooses to avoid highly invasive and intrusive procedures to postpone his death. Grant, 109 Wash.2d at 556, 747 P.2d 445. Rather, his situation is one where it can be inferred that the road to death is set in motion for purposes of committing suicide. See id. at 556-57, 747 P.2d 445 (stating that the State's interest in preventing suicide is not implicated when a death is neither set in motion nor intended by the patient). Thus, the compelling State interests of preserving life...