Parmelee v. O'Neel

• Decision Date: 19 June 2008
• Docket Number: No. 35652-0-II.,35652-0-II.
• Citation: 186 P.3d 1094,145 Wn. App. 223
• Court: Washington Court of Appeals
• Parties: Allan PARMELEE, Appellant, v. Robert O'NEEL; Robert Monger; Harold Clarke, Eldon Vail; Lynn Delano, Kathryn Bail; Carroll Riddle; Sandra Carter; John Palmer; John Aldana; Sandra Diimel; Jerry McHaffie; Tina Adams; Nathan Cornish; Michael Erlenmeyer; unknown others, and the community partners of each named Defendant, Respondents.

186 P.3d 1094

145 Wn. App. 223

Allan PARMELEE, Appellant, v. Robert O'NEEL; Robert Monger; Harold Clarke, Eldon Vail; Lynn Delano, Kathryn Bail; Carroll Riddle; Sandra Carter; John Palmer; John Aldana; Sandra Diimel; Jerry McHaffie; Tina Adams; Nathan Cornish; Michael Erlenmeyer; unknown others, and the community partners of each named Defendant, Respondents.

No. 35652-0-II.

Court of Appeals of Washington, Division 2.

June 19, 2008.

Hank L. Balson, Public Interest Law Group, Seattle, WA, for Appellant.

Amanda Marie Migchelbrink, Attorney at Law, Daniel John Judge, Attorney General's Office, Olympia, WA, for Respondents.

Eric Stahl, Davis Wright Tremaine LLP, Seattle, WA, Aaron Hugh Caplan, Los Angeles, CA, Sarah A. Dunne, ACLU, Kristina Silja Bennard, Davis Wright Tremaine LLP, Seattle, WA, Amicus Curiae on behalf of American Civil Liberties Union of Washington Foundation.

BRIDGEWATER, J.

¶ 1 Allen¹ Parmelee, a Department of Corrections (DOC) inmate, appeals from the dismissal of his suit for damages and for an injunction against DOC for violating his First Amendment rights, and his due process rights, and retaliating against him for exercising his First Amendment rights. We hold that when DOC infracted Parmelee for referring to Sandra Carter, the superintendent of Clallam Bay Correctional Center, as "anti-male — a lesbian" in a letter to DOC Secretary, it based the infraction on the criminal libel statute under RCW 9.58.010. We hold that the criminal libel statute is facially unconstitutional for overbreadth and vagueness. Because DOC based Parmelee's infraction on an unconstitutional statute, we vacate the infraction.

¶ 2 We further hold that the trial court erred when it dismissed Parmelee's retaliation claim under CR 12(b)(6) because, based on his pleadings, Parmelee may be able to prove a set of facts that would justify recovery: Parmelee was in litigation against DOC officials, he made critical statements against DOC staff and policy, and DOC did not issue the infraction until three months after he had attempted to send his critical letter to the DOC secretary. We reverse the trial court's dismissal under CR 12(b)(6) and remand to the superior court, where Parmelee may assert his claims for damages against DOC for violating his substantive due process rights, for violating his First Amendment rights, and for retaliating against him for exercising his rights.

FACTS

¶ 3 Parmelee is a Washington State inmate in the custody of DOC. He describes himself as outspoken and politically active. He has written prisoner self-help books, news articles, and press releases regarding prisoner rights. Parmelee is often critical of DOC staff, policies, and operations.

¶ 4 On July 20, 2005, Parmelee tried to send a letter to DOC Secretary Harold Clarke, complaining about the conditions and programs at Clallam Bay Corrections Center (CBCC). In the letter, Parmelee stated that CBCC Superintendent Sandra Carter was "anti-male—a lesbian."² CP at 717. He also speculated that "[h]aving a man-hater lesbian as a superintendent is like throwing gas on [an] already smoldering fire." CP at 718. DOC intercepted the letter, preventing it from leaving the institution.

¶ 5 Three months later, on October 14, 2005, DOC issued a serious infraction against Parmelee under former WAC 137-28-260(1)(517) (2005),³ for "[c]ommitting any act that is a misdemeanor under local, state, or federal law that is not otherwise included in these rules." Prison officials infracted Parmelee under this disciplinary rule for violating Washington's criminal libel statute, RCW 9.58.010. Specifically, DOC claimed that his letter to Secretary Clarke "IS CONSIDERED TO BE LIBLOUS [sic] AND SLANDERS THE CHARACTER AND REPUTATION OF SUPERINTENDENT SANDRA CARTER." CP at 714.

¶ 6 DOC afforded Parmelee a hearing in front of a hearing officer to address the infraction. At the hearing, Parmelee tried to enter a written statement that explained his position on the infraction filed against him. He also submitted a request for DOC employees to respond to written questions, including questions regarding Carter's sexual orientation. The hearing officer refused to permit the questions because "`they [were] designed to question the integrity of staff and not addressing the guilt or innocents [sic] of the offender.'" Br. of Resp't at 4 (citing CP at 722-36).⁴ The hearing officer found Parmelee guilty of the infraction, punishing him with 10 days of disciplinary isolation and 10 days without privileges. Parmelee's punishment did not affect or extend his current sentence.

¶ 7 On December 27, 2005, Parmelee filed a complaint for libel, slander, due process violations, First Amendment violations, malicious prosecution, and retaliation⁵ against several DOC employees.⁶ He sought monetary, declaratory, and injunctive relief.⁷ After DOC employees answered the complaint, Parmelee filed a motion for judgment on the pleadings. DOC employees opposed the motion and filed a cross-motion to dismiss the lawsuit. The superior court commissioner considered the motions without oral argument and entered a memorandum opinion on October 3, 2006, granting DOC employees' motion while denying Parmelee's.

¶ 8 Parmelee filed a motion to revise the commissioner's ruling, which the trial court denied. He continued to file subsequent motions for revision and reconsideration, all of which the trial court denied.⁸ He then filed a notice of appeal on November 27, 2006. Although there is no evidence in the record showing that Parmelee served notice of his appeal to DOC employees, they timely filed a response with this court. In addition, we permitted the American Civil Liberties Union of Washington (ACLU) to file an amicus curiae brief, addressing the facial validity of Washington's criminal libel statute, RCW 9.58.010 and .020. DOC employees chose not to address the constitutionality of RCW 9.58.010 or .020.

ANALYSIS

I. Standard of Review

¶ 9 Parmelee filed a motion for judgment on the pleadings under CR 12(c), and DOC employees filed a motion to dismiss for failure to state a claim upon which relief may be granted under CR 12(b)(6). We review a trial court's dismissal of a claim under either CR 12(b)(6) or CR 12(c) de novo. Burton v. Lehman, 153 Wash.2d 416, 422, 103 P.3d 1230 (2005); Suleiman v. Lasher, 48 Wash.App. 373, 376, 739 P.2d 712 (a motion to dismiss for failure to state a claim (CR 12(b)(6)) and a motion for judgment on the pleadings (CR 12(c)) raise identical issues), review denied, 109 Wash.2d 1005 (1987). Dismissal under CR 12 is appropriate only if it is beyond doubt that the plaintiff cannot prove any set of facts to justify recovery. Burton, 153 Wash.2d at 422, 103 P.3d 1230; Suleiman, 48 Wash.App. at 376, 739 P.2d 712. In making this determination, a trial court must presume that the plaintiff's allegations are true and may consider hypothetical facts that are not included in the record. Burton, 153 Wash.2d at 422, 103 P.3d 1230. It is under this standard that we must review the issues raised on appeal.

II. Constitutionality of Washington's Criminal Libel Statute On Its Face

¶ 10 Parmelee first challenges the constitutionality of Washington's criminal libel statutory scheme, RCW 9.58.010 and .020, under which DOC punished him for the language in his letter to Superintendent Clarke. He alleges that the statute is facially unconstitutional under Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). Therefore, Parmelee contends that the superior court erred when it dismissed his claims under CR 12(b)(6) and found that DOC may rightly rely on chapter RCW 9.58 as basis for its actions against him.

¶ 11 Although Parmelee did not challenge the constitutionality of RCW 9.58.010 and .020 below, we may consider manifest constitutional errors for the first time on appeal. RAP 2.5(a)(3). An error is manifest if it has practical and identifiable consequences in the trial at issue. State v. WWJ Corp., 138 Wash.2d 595, 603, 980 P.2d 1257 (1999). We believe that the constitutionality of Washington's criminal libel statutory scheme has practical and identifiable consequences in this case, particularly in light of the long-standing United States Supreme Court precedent declaring criminal libel statutes unconstitutional under its First Amendment jurisprudence See, e.g., Garrison, 379 U.S. 64, 85 S.Ct. 209. We are therefore compelled to address whether Washington's criminal libel statutory scheme is unconstitutional under United States Supreme Court precedent.

A. Criminal Libel and First Amendment Jurisprudence

¶ 12 In order to properly analyze the constitutionality of Washington's criminal libel statutory scheme, a brief review of defamation law in the context of First Amendment jurisprudence is necessary. To begin, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), was a turning point for defamation law in the United States. There, the Supreme Court held that civil sanctions could not be imposed based on defamatory statements made about a public official unless such statements were false and made with "actual malice." New York Times, 376 U.S. at 279, 84 S.Ct. 710. It defined "actual malice" as making a statement "with knowledge that [the statement] was false or with reckless disregard of whether it was false or not." New York Times, 376 U.S. at 279-80, 84 S.Ct. 710. The Supreme Court reasoned that "debate on public issues should be uninhibited, robust, and wide-open, and ... may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times, 376 U.S. at 270, 84 S.Ct. 710.

¶ 13 In the same year, the Supreme Court decided Garrison, wherein it extended principles set forth in New York Times to the criminal context. In Garrison, the State convicted a district attorney under Louisiana's criminal libel statute for issuing a disparaging statement concerning the judicial conduct of...