Monohan v. Burdman

• Decision Date: 07 January 1975
• Docket Number: No. 42992,42992
• Citation: 530 P.2d 334,84 Wn.2d 922
• Parties: In the Matter of the Application for a Writ of Habeas Corpus of Philip MONOHAN, Petitioner, v. Milton BURDMAN, Secretary of the State of Washington Department of Social and Health Services, Respondent.
• Court: Washington Supreme Court

Page 922

84 Wn.2d 922

530 P.2d 334

In the Matter of the Application for a Writ of Habeas Corpus

of Philip MONOHAN, Petitioner, v. Milton BURDMAN, Secretary of the State of Washington

Department of Social and Health Services, Respondent.

No. 42992.

Supreme Court of Washington, En Banc.

Jan. 7, 1975.

Rehearing Denied March 13, 1975.

Richard D. Emery, Allen Ressler, Prison Legal Services Project, Seattle, for petitioner.

Slade Gorton, Atty. Gen., Thomas A. Prediletto, Asst. Atty. Gen., Olympia, for respondent.

HAMILTON, Associate Justice.

Petitioner, Philip Monohan, seeks a writ of habeas corpus. The essence of his petition rests upon his contention that a tentative parole release date, accorded him while an inmate of the Washington State Corrections Center, was cancelled without appropriate notice and an adjudicatory hearing. Under the circumstances of this case, we hold that he was entitled to minimal due process requirements of a notice and hearing. Accordingly, we refer the matter to respondent for appropriate proceedings.

The operative circumstances are these. In 1968, petitioner was convicted of two separate felonies. He was sentenced on each to be confined in a correctional facility. In due course the minimum term for each offense was set, the respective terms to run consecutively.

On May 25, 1973, the petitioner met with a panel of the Board of Prison Terms and Paroles for his annual progress conference. At this time, it was determined that he had performed so well that the panel ordered a parole on his first offense and reduced his minimum sentence on the second offense to the end that a tentative parole release date was established as of August 30, 1973. Actual release on the specified date was conditioned upon development of an acceptable parole rehabilitation plan.

Initially, an interstate parole plan was considered. However, it appeared that certain difficulties arose with respect to the interstate plan, as a result of which petitioner was granted a furlough, pursuant to RCW 72.66, to undertake development of a parole plan in his home community of Vancouver, Washington. Petitioner arrived at his home in Vancouver on August 1, 1973.

On August 2, 1973, petitioner was arrested by the Clark County Sheriff and charged with disorderly conduct. The charge arose out of his alleged participation in a drug-oriented party. After notification to petitioner's supervising parole officer, he was returned on August 3, 1973, to the corrections center by Clark County authorities. On the same day, the Clark County Prosecuting Attorney's office advised the corrections center authorities that all charges against petitioner had been dismissed.

Upon arrival at the corrections facility, petitioner was placed in segregation for a period of time following which he appeared for interview before the institution's classification committee. He was not given any written notice as to what allegations of misconduct the committee would be considering. As a result of the interview, the committee concluded from written reports of the arrest incident that petitioner had violated his furlough conditions and that he was then unsuitable for parole. The committee recommended that the parole board reconsider the matter of his pending parole. During the interview, petitioner denied any misconduct during his furlough and asserted his innocence of the disorderly conduct charge.

Pursuant to the recommendation of the classification committee, a panel of the parole board conducted a hearing on August 30, 1973. Although orally advised of the reasons for the hearing, petitioner was not given written notification of the issues to be considered, nor was he accorded the opportunity to confront his accusers, cross-examine them, or call witnesses on his own behalf. Following the hearing and despite petitioner's protestations of innocence, the panel accepted the conclusions and recommendation of the classification committee, cancelled petitioner's tentative release date, and extended his minimum term for 9 months.

Petitioner again met with a panel of the parole board in December 1973. It was then determined that he had again performed well at the institution, good time was granted, and a tentative parole release date of March 29, 1974, was established. His release date was reached after filing of his petition, but prior to oral argument before this court on the petition.

Although not briefed by either party, a threshold question raised during oral argument concerns the propriety of our considering the issues raised by petitioner in view of his intervening release on parole. In short, has his release rendered moot the issues he propounds regarding the summary cancellation of his August 30, 1973 tentative parole release date? We think not.

In the first place, the restrictions, limitations, and condtions attached to the usual parole status constitute a form of 'custody' falling within the reach of habeas corpus relief. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, 92 A.L.R.2d 675 (1963). This is so because a parolee, unlike the ordinary citizen, is subject to supervision by his parole officer, limited in his mode, manner, and place of living and travel, restricted as to his associates and type of employment, and subject to reincarceration in the event of a breach of any conditions of his parole. Thus, he is not a free man in the commonly accepted sense.

In the second place, the potentially adverse effects of petitioner's tentative parole release date cancellation are sufficiently significant 'collateral consequences' to retrieve his petition from the 'limbo of mootness,' ¹ although he is no longer physically incarcerated by virtue of that release date revocation. Scarpelli v. Gagnon, 317 F.Supp. 72 (E.D.Wis. 1970), aff'd sub nom., Gunsolus v. Gagnon, 454 F.2d 416 (7th Cir. 1971), aff'd in part, rev'd in part on other grounds sub nom., Gagnon v. Scarpelli,411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); See also Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Hahn v. Burke,430 F.2d 100 (7th Cir. 1970); and, Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969). It is not unlikely that his supervising parole officer or a future sentencing judge, in the event of an infraction of the rules of parole or law, might well consider the rescission of his initial parole release date as a factor mitigating against continued parole or possible probation.

We conclude that, for purposes of our consideration on the merits, petitioner's application for a writ of habeas corpus is not moot.

The precise question posed here is whether the right of minimal due process hearings, as guaranteed to probationers and parolees under Gagnon v. Scarpelli, Supra, and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), should be accorded to proceedings leading up to the cancellation of a previously established, tentative parole release date for reasons other than inability to develop an acceptable parole rehabilitation plan. As we have indicated, we believe it should.

Initially, we note that in this state minimal due process hearings are provided for under RCW 9.95.080 ² in situations where a prison inmate is accused of violating disciplinary rules within the prison facility. The extension of a prisoner's minimum term may result from a hearing under this statute. Furlough as a prelude to and contrasted with parole would appear on the surface to be more restrictive than outright parole, and more nearly representative of an extension or continuation, beyond the walls, of 'institutional custody.' Thus, it would appear reasonable to conclude that furlough infractions, leading to cancellation of a parole release date, more closely approximate violations of institutional rules than otherwise and thereby properly fall within the contemplation of RCW 9.95.080.

The respondent, however, points to RCW 9.95.052 ³ and asserts that the procedure there outlined was the procedure followed in the instant case and that no minimal due process safeguards are therein provided. Furthermore, respondent asserts that, in any event, petitioner was notified of and allowed to explain or deny his actions on furlough both before the classification committee and the panel of the parole board which ultimately cancelled his tentative parole release date. We cannot agree with respondent, not only because we believe RCW 9.95.080 more appropriately governs here, but also because we are satisfied such a result flows from the United States Supreme Court's decisions in Morrissey and Gagnon. Cf. Means v. Wainwright, 299 So.2d 577 (Fla.Sup.Ct.1974).

The problem, if one arises from a statutory hiatus, may best be resolved by looking to the analogous situation of a parole revocation proceeding. We have, under the United States Supreme Court rulings in Morrissey and Gagnon, inferentially, if not directly recognized that a parolee is entitled to a preliminary and final revocation hearing. Standlee v. Smith,83 Wash.2d 405, 518 P.2d 721 (1974); State v. Simms, 10 Wash.App. 75, 516 P.2d 1088 (1973), pet. for rev. denied, 83 Wash.2d 1007 (1974); State v. Johnson, 9 Wash.App. 766, 514 P.2d 1073 (1973), pet. for rev. denied, 83 Wash.2d 1006 (1974). The underlying reasoning is that even though parole revocation is not a stage of criminal prosecution, revocation does result in a loss of conditional liberty, and minimum due process standards must be met.

The critical inquiry here, then, would appear to be whether the 'potential conditional liberty' established by the fixing of a tentative parole release date has created such a right or anticipation of impending liberty, that denial of it or continued incarceration beyond the tentative date, for causes other than failure to provide an adequate rehabilitation plan, would warrant a due process determination of the reasons...