Moore v. Gaither, 99-SP-277.

• Decision Date: 22 February 2001
• Docket Number: No. 99-SP-277.,99-SP-277.
• Parties: Lonnie MOORE, Appellant, v. Glenda GAITHER, Appellee.
• Court: D.C. Court of Appeals

767 A.2d 278

Lonnie MOORE, Appellant, v. Glenda GAITHER, Appellee.

No. 99-SP-277.

District of Columbia Court of Appeals.

Argued October 17, 2000.

Decided February 22, 2001.

Frank R. Volpe, with whom Mark D. Hopson, Virginia A. Seitz, and Joseph S. Miller were on the brief, Washington, DC, for appellant.

Henry A. Escoto, appointed by the court, filed the brief, Washinton, DC, for appellee.

Mary L. Wilson, Assistant Corporation Counsel, with whom Robert Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for the District of Columbia, amicus curiae.

James W. Klein, Public Defender Service, with whom Robert C. Hauhart, Public Defender Service, was on the brief, for the Public Defender Service, amicus curiae.

Before STEADMAN, SCHWELB, and FARRELL, Associate Judges.

SCHWELB, Associate Judge:

On November 26, 1997, appellee Glenda Gaither was sentenced to serve a term of imprisonment by a judge of the Superior Court. Ms. Gaither was placed at the Correctional Treatment Facility (CTF), a privately operated correctional institution which is located in southeast Washington, D.C. The CTF houses District of Columbia prisoners under the terms of a contract with the District's Department of Corrections (DOC). In January 1998, CTF staff charged Ms. Gaither with several violations of the facility's disciplinary regulations, including bribery, falsification of physical evidence, and "being out of place."

On January 20, 1998, Henry A. Escoto, Esquire, Ms. Gaither's attorney, arrived at the CTF for the purpose of representing his client at a disciplinary hearing on these charges, which was scheduled for that day. Although it had previously been the practice at the CTF to permit attorneys for prisoners to participate in disciplinary proceedings, Mr. Escoto was not granted permission to do so. CTF personnel also denied Mr. Escoto leave to attend the hearing or to consult with his client in advance of the proceedings. Following the hearing, the CTF's Board of Adjustment ordered that Ms. Gaither be placed in "adjustment segregation" (solitary confinement) for several weeks and that she lose certain privileges.

On January 22, 1998, Ms. Gaither petitioned the Superior Court for a writ of habeas corpus. Ms. Gaither alleged that her detention in solitary confinement was unlawful. She claimed that the CTF's refusal to permit her attorney to represent her in the disciplinary proceeding deprived her of rights protected by the Lorton Regulations Approval Act (LRAA), 29 D.C.Reg. 3484 (1982), and the Lorton Regulations, which are codified at 28 DCMR §§ 500 et seq. (1987).

On February 5, 1999, more than a year after the petition was filed,¹ the trial judge concluded that under the Lorton Regulations, Ms. Gaither was entitled to legal representation at her disciplinary hearing. The judge ordered

that all references to the offenses which petitioner was found guilty of at the January 20, 1998, disciplinary hearing and that the time she spent in administrative segregation as a result of said hearing be expunged from her record for failure to comply with 28 DCMR §§ 500 et seq.

The CTF's Warden, Lonnie Moore, appeals, contending that the LRAA has no application to the CTF and that Ms. Gaither had no constitutional or statutory right to counsel at the disciplinary hearing. The District has participated in the appeal as amicus curiae in support of Mr. Moore's position. Ms. Gaither, who is joined in her contentions by the Public Defender Service as amicus curiae, asserts that the exclusion of her attorney from the proceeding was in contravention of her statutory and other rights.

Although the denial of counsel to District prisoners at disciplinary hearings is at odds with the practice in this jurisdiction for a quarter of a century, Ms. Gaither's statutory and related arguments do not persuade us that she had a right to such representation while housed at the CTF. Accordingly, we reverse.

I. BACKGROUND

A. The enactment of the LRAA and the adoption of the Lorton Regulations.

The issue before us is one of considerable importance for prisoners confined at the CTF and similar institutions. To put the matter in simple human terms, adjustment segregation in solitary confinement (popularly known as the "hole") is not a pleasant experience, see, e.g., Hatch v. District of Columbia, 337 U.S.App. D.C. 266, 268, 184 F.3d 846, 848 (1999) (describing alleged solitary confinement regime at Lorton); Smith v. Moore, 749 A.2d 132, 134 n. 3 (D.C.2000) (same), and litigation over prison conditions in this jurisdiction has often been concerned with the protections available to a prisoner in a disciplinary proceeding which may result in his or her placement in solitary. From the perspective of the prisoner, the right to representation by counsel is one of the most important of these protections.² Ms. Gaither's quarrel with the CTF is but the latest chapter in a continuing controversy over the operation of prisons and the limits of any role that judges and lawyers should play in determining acceptable conditions of confinement.

For purposes of this appeal, our discussion must begin with a class action brought against the DOC more than a quarter of a century ago by inmates of the Lorton Correctional Complex. See Wright v. Jackson, No. 75-0697 (D.D.C.).³ In that suit, the prisoners alleged that the DOC's disciplinary procedures, including those applicable to the placement of inmates in solitary confinement, denied the plaintiffs rights protected by the Fifth Amendment's Due Process Clause. In 1979, the parties reached a negotiated settlement, and the District agreed to adopt new regulations which were designed, inter alia, to protect the procedural rights of prisoners in disciplinary proceedings. These regulations were duly promulgated and adopted, and they are now codified in 28 DCMR §§ 500-519 (1987).

In 1982, in conformity with the settlement of the Wright case, the Council of the District of Columbia approved the Lorton Regulations by enacting the LRAA, which provides, in pertinent part, as follows:

The Council of the District of Columbia approves the regulations setting forth the administrative procedures for adjustment and housing actions and the code of offenses governing residents of the Lorton Correctional Complex as adopted by the Director of Corrections on February 18, 1981, and published in the D.C. Register on February 27, 1981 (28 DCR 865).

LRAA § 2, 29 D.C.Reg. 3484. The Mayor signed the legislation, and the LRAA was transmitted for Congressional review. 29 D.C.Reg. 3484 (1982). Congress interposed no objection, and the LRAA became law in 1982. This court has held that the Lorton Regulations confer protected liberty interests, and that these interests are judicially enforceable. See, e.g., Abdullah v. Roach, 668 A.2d 801, 805-07 (D.C.1995).

B. The content of the Lorton Regulations.

The Lorton Regulations articulate the following "General Policy":

Whenever an offense is charged, the accused shall be accorded all of the procedural safeguards provided in this chapter.

28 DCMR § 500.8. The procedural safeguards to which the "General Policy" refers include an elaborate scheme for legal representation of prisoners at disciplinary hearings. The right to such representation is recognized early in the process. When prison officials conclude that the allegations in a disciplinary report warrant an "adjustment hearing," then "[t]he shift supervisor shall inform the resident that the resident may be represented by counsel." 28 DCMR § 507.6. At least three days before the hearing date, the supervisor

must inform the resident in writing . . . [t]hat the resident may select a representative, including an attorney, or substitute counsel, to represent the resident at the hearing, but that such representation will not be at the expense of the Department of Corrections.

Id. § 507.13. In addition, "[i]f the resident desires to be represented by an attorney or substitute counsel but does not have one, the resident shall be given reasonable opportunity to contact any legal service organization approved by the Department of Corrections for that purpose." Id. § 507.15. The Regulations ensure that counsel shall have time to prepare for the hearing,⁴ and the prisoner's attorney must be permitted to cross-examine adverse witnesses.⁵ Finally, "[i]f the resident wishes to appeal, the resident, his counsel, or substitute counsel may listen to the tape or read the minutes." Id. § 511.6.

It is undisputed, and, indeed, indisputable, that Ms. Gaither was placed in solitary confinement and subjected to other discipline without having been provided any of the protections described above. Accordingly, if the Lorton Regulations apply to disciplinary proceedings at the CTF, then Ms. Gaither received institutional punishment on the basis of a hearing that was not conducted in conformity with those regulations. To determine whether the CTF was required to follow the Lorton Regulations, we turn to the creation and history of that facility.

C. The Correctional Treatment Facility.

We are in an era of privatization, and prisons are no exception. In 1992, the DOC opened a new correctional facility, designated the CTF, on federal land adjacent to the District of Columbia Jail in southeast Washington, D.C. In 1996, in contemplation of the sale and leaseback of the CTF to the Corrections Corporation of America (CCA), a privately owned operator of prisons, the Council of the District of Columbia enacted the Correctional Treatment Facility Act of 1996 (CTFA), D.C.Code §§ 24-495.1 et seq. (1999), which created the CTF and established certain legal standards governing the facility. See Part II C, infra.

In March 1997, the CCA assumed the operation and management of the CTF in accordance with the terms of a previously approved "Management Agreement" with the DOC.⁶ Under the terms of the Management Agreement, the CCA was required...