McNabb v. Department of Corrections

Decision Date10 April 2008
Docket NumberNo. 77359-9.,77359-9.
Citation163 Wn.2d 393,180 P.3d 1257
CourtWashington Supreme Court
PartiesCharles R. McNABB, Petitioner v. DEPARTMENT OF CORRECTIONS, an agency of the state of Washington; Joseph D. Lehman, secretary of Department of Corrections, in his official capacity, Respondents.

Terri D. Sloyer, Attorney at Law, Breean Lawrence Beggs, Center for Justice, Spokane, WA, for Petitioner.

Mary Catherine McLachlan, Attorney Generals Office WA., Spokane, WA, Carol A. Murphy, Attorney General's Office, Olympia, WA, for Respondent.

FAIRHURST, J.

¶ 1 Charles R. McNabb seeks review of a published Court of Appeals decision affirming summary judgment in favor of the Department of Corrections (DOC). McNabb sued DOC and Joseph D. Lehman, secretary of DOC, in his official capacity (hereinafter collectively DOC), seeking to have DOC's force-feeding policy declared unconstitutional, illegal, and invalid as applied to him and to enjoin DOC from enforcing the policy. McNabb argues that he has a right to refuse artificial means of nutrition and hydration arising independently from the explicit privacy guaranty in article I, section 7 of the Washington Constitution1 and from his common law right to refuse medical treatment. He also argues the State may infringe that right only if it has a narrowly drawn compelling interest.

¶ 2 We conclude that an independent state constitutional analysis of the right to refuse artificial means of nutrition and hydration is warranted under article I, section 7. We also conclude that the State's interests in applying DOC's force-feeding policy to McNabb outweigh his right to refuse artificial means of nutrition and hydration. We affirm the Court of Appeals.

I. PROCEDURAL HISTORY

¶ 3 McNabb arrived at Airway Heights Corrections Center (AHCC) from the Spokane County Jail in July 2004, at which time he had not eaten voluntarily for over five months.2 AHCC staff began to force-feed McNabb by nasogastric tube one or two days after he arrived because he refused food and drink. After DOC force-fed him for several days, McNabb agreed to eat on his own.3 He has not been force-fed since.

¶ 4 McNabb filed suit in Spokane County Superior Court shortly after he began to eat on his own. He claimed that DOC's force-feeding policy violated his right to privacy under article I, section 7 and his common law right to be free of bodily invasion. He sought a declaratory judgment, preliminary injunction, consolidation of hearing on the merits, and summary judgment. DOC objected, arguing that McNabb was no longer being force-fed and that there had not been sufficient opportunity for discovery. At the hearing, the trial court concluded that the case involved only questions of law, found that McNabb did not have a right to refuse artificial means of nutrition and hydration while in state custody, and entered an order sua sponte granting summary judgment in favor of DOC.

¶ 5 McNabb appealed the trial court order to Division Three of the Court of Appeals, arguing that he has a fundamental constitutional right to refuse artificial means of nutrition and hydration arising under article I, section 7 and a common law right to determine what is done with his body. The Court of Appeals concluded that Washington precedent prohibiting "unconsented invasions of the body" does not support McNabb's claim that an inmate has a constitutional right to refuse artificial means of nutrition and hydration. McNabb v. Dep't of Corrs., 127 Wash.App. 854, 858, 112 P.3d 592 (2005). It concluded there was no Washington case law suggesting that article I, section 7 provides greater protection to prison inmates than the federal constitution. Id. at 859, 112 P.3d 592. The court also concluded that the privacy right McNabb has to refuse artificial means of nutrition and hydration is not absolute and the court must balance the right against the State's interests in protecting life, preventing suicide, and preserving the internal order and discipline of the prison system. Id. at 859-60, 112 P.3d 592. It held that although DOC's force-feeding policy might violate McNabb's privacy right to refuse artificial means of nutrition and hydration, the State's interests outweigh his right. Id. at 861, 112 P.3d 592.

¶ 6 McNabb petitioned this court to determine whether he has a right to refuse artificial means of nutrition and hydration that arises independently from the privacy guaranty in article I, section 7 and whether the State can infringe on that right only if it has a narrowly drawn compelling interest. We granted review. McNabb v. Dep't of Corrs., 156 Wash.2d 1016, 132 P.3d 734 (2006).

II. ISSUES

A. Should the court analyze the right to refuse artificial means of nutrition and hydration under article I, section 7 on independent state constitutional grounds?

B. Does article I, section 7 guarantee an otherwise healthy and competent inmate' the absolute right to refuse artificial means of nutrition and hydration after he or she has engaged in a prolonged fast with the intent to die as a result?

C. Do the State's interests outweigh McNabb's right to refuse artificial means of nutrition and hydration?

III. STANDARD OF REVIEW

¶ 7 We normally review denial of an injunction for abuse of discretion. State v. Kelley, 77 Wash.App. 66, 69, 889 P.2d 940 (1995) (citing State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971)). We review an order of summary judgment in a declaratory judgment action de novo and perform the same inquiry as the trial court. Simpson Tacoma Kraft Co. v. Dep't of Ecology, 119 Wash.2d 640, 646, 835 P.2d 1030 (1992). Facts and reasonable inferences are considered in the light most favorable to the nonmoving party and questions of law are reviewed de novo. Coppernoll v. Reed, 155 Wash.2d 290, 296, 119 P.3d 318 (2005).

IV. ANALYSIS

¶ 8 As a preliminary matter, we will define the terms used to describe the constitutional right at issue here. The dissent characterizes the right McNabb asserts as the right to bodily integrity. Dissent at 1270. McNabb describes his claim as the right of "bodily integrity" of which "the right to refuse artificial means of nutrition and hydration" is a subset. Pet. for Review at 4. Previously, we characterized the right to refuse nasogastric intubation as the right to refuse "artificial means of nutrition and hydration." In re Guardianship of Grant, 109 Wash.2d 545, 565, 747 P.2d 445, 757 P.2d 534 (1988). This right is subject to the same analysis used to examine the right to refuse life-sustaining medical treatment. Id. at 562, 747 P.2d 445. Consistent with the vernacular in Grant, we will refer to McNabb's asserted right as the right to refuse artificial means of nutrition and hydration.

¶ 9 McNabb claims that he has a right to refuse artificial means of nutrition and hydration but would have the court consider this issue in relative isolation of the circumstances that precipitated the involuntary nasogastric intubation. We think the events leading up to DOC applying its force-feeding policy bear significant import to the right being asserted. Prior to the medical intervention, McNabb fasted willfully for a period of five months. McNabb is not terminally ill or chronically debilitated by disease. However, he asks the court to allow him to refuse artificial means of nutrition and hydration so that his fast may "`take its course'" with the inevitable and intended consequence of death. Br. of Appellant at 2 (quoting Clerk's Papers (CP) at 7). Accordingly, this opinion discusses the right to refuse artificial means of nutrition and hydration in the context of an inmate whose intentional acts procured the circumstances giving rise to the condition necessitating nasogastric intubation.

A. Should the court analyze the right to refuse artificial means of nutrition and hydration under article I, section 7 on independent state constitutional grounds?

¶ 10 McNabb argues that it is well established that he has a right to refuse artificial means of nutrition and hydration arising independently from the explicit privacy guaranty of article I, section 7 that is "far stronger than any in federal law." Pet. for Review at 5. To support this proposition, he cites a line of cases4 in which he claims this court has held that individuals may refuse medical treatment, including artificial nutrition and hydration. DOC counters that no Washington court has previously considered the specific question of whether a right to refuse artificial means of nutrition and hydration arises independently from the privacy guaranty of article I, section 7 and urges us to hold that it does not.

¶ 11 When a party claims a provision of the state constitution provides greater protection than a provision of the federal constitution, we conduct a two-step inquiry.

¶ 12 First, we determine whether an independent analysis of the state constitutional provision is warranted. As part of this inquiry, we ask whether it is settled law that an independent analysis should be conducted when interpreting the state constitutional provision. If so, we go to step two and proceed with our independent analysis. However, if it is not settled law that an independent analysis should be conducted — because we have not been asked or because we have historically followed federal precedent in interpreting a state constitutional provision — we will determine whether the state constitutional provision "should be given an interpretation independent from that given to the corresponding federal constitutional provision," but only if the parties brief the six nonexclusive factors set out in State v. Gunwall, 106 Wash.2d 54, 64, 720 P.2d 808 (1986). State v. McKinney, 148 Wash.2d 20, 26, 60 P.3d 46 (2002) (citing Gunwall, 106 Wash.2d at 64, 720 P.2d 808). The Gunwall factors include (1) the text of the state constitutional provision at issue, (2) textual differences between parallel state and federal...

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