State v. Simmons
| Decision Date | 15 July 2003 |
| Docket Number | No. 28654-8-II.,28654-8-II. |
| Citation | 117 Wash.App. 682,73 P.3d 380 |
| Parties | STATE of Washington, Respondent, v. Joseph Goodrich SIMMONS, Jr., Appellant. |
| Court | Washington Court of Appeals |
Stephanie Diane Carter, Lacey, WA, for Appellant.
Krista Kay Bush, Attorney General, Seattle, WA, for Respondent.
The State charged Joseph Simmons, Jr. with persistent prison misbehavior, a violation of RCW 9.94.070. After denying Simmons' motion to dismiss, the court found him guilty as charged. Holding that RCW 9.94.070 is neither void as an unconstitutional delegation of legislative authority nor violative of equal protection, we affirm.
While confined at McNeil Island Corrections Center for an offense committed after August 1, 1995, Simmons committed 46 infractions of prison rules. This cost him all his potential earned early release time credits.
In December 2001, a month before his release date, he knowingly damaged a fire sprinkler in his cell and knowingly flooded his cell and the adjoining areas. The flooding constituted a serious infraction of prison rules under Washington Administrative Code (WAC) XXX-XX-XXX(720).
The State charged Simmons for this conduct with one count of persistent prison misbehavior, a class C felony under RCW 9.94.070. Simmons moved to dismiss, arguing that RCW 9.94.070 unconstitutionally delegates legislative authority to the Department of Corrections (DOC) and violates equal protection. For authority, he cited State v. Brown, 95 Wash.App. 952, 977 P.2d 1242 (1999), aff'd, 142 Wash.2d 57, 11 P.3d 818 (2000) (Brown I), an opinion from Division Three of this court.
The trial court denied the motion, ruling that as the Supreme Court had affirmed Brown I on grounds other than improper delegation of authority, Brown I did not control in this case. See State v. Brown, 142 Wash.2d 57, 62-63, 11 P.3d 818 (2000) (Brown II). Following a trial on stipulated facts, the trial court found Simmons guilty as charged.
Simmons appeals, again asserting that RCW 9.94.070 is unconstitutional.
A person who has lost all potential earned early release time credit and knowingly commits a serious infraction while serving a sentence for an offense committed on or after August 1, 1995, is guilty of persistent prison misbehavior. RCW 9.94.070(1).1 A serious infraction is "misconduct that has been designated as a serious infraction by department of corrections rules adopted under RCW 72.09.130." RCW 9.94.070(2). Flooding a cell or other area of an institution is a serious infraction. WAC 137-28-260(720).
Inmates who do not comply with internal prison rules can lose potential earned early release time/good time credit. Brown II, 142 Wash.2d at 60, 11 P.3d 818. The legislature enacted RCW 9.94.070 in 1995 in response to DOC's concern about maintaining discipline over inmates who have no credit to lose and, thus, have less incentive to follow prison rules. Brown II, 142 Wash.2d at 60, 11 P.3d 818.
But after the legislature passed RCW 9.94.070 in 1995, DOC failed to adopt rules designating certain conduct as a serious infraction pursuant to RCW 72.09.130. Brown II, 142 Wash.2d at 61, 11 P.3d 818. Instead, DOC continued to administer its disciplinary code, chapter 137-28 WAC, including its serious infraction rules, under its general grant of powers, RCW 72.01.090. Brown II, 142 Wash.2d at 61, 11 P.3d 818. In Brown II, the Washington Supreme Court held that because of this failure, the State could not prosecute Brown for persistent prison misbehavior; thus, it affirmed the trial court's dismissal of the charge. 142 Wash.2d at 61-63, 11 P.3d 818.
In 1998, DOC complied with RCW 9.94.070 by repromulgating chapter 137-28 WAC under the authority of that statute, RCW 72.01.090, and RCW 72.09.130. WAC 137-28-150. DOC also began providing notice to inmates that commission of a serious infraction can lead to felony prosecution:
When an offender knowingly commits an additional serious infraction after losing all potential earned early release time credits, the superintendent will report that offender to local law enforcement authorities for possible felony prosecution under RCW 9.94.070.
WAC 137-28-190(2). But in reviewing Brown I, the Supreme Court did not consider the adequacy of the new regulations because DOC had promulgated them after the State had filed the charge against Brown. Brown II, 142 Wash.2d at 62 n. 3, 11 P.3d 818.
The Brown I court held that RCW 9.94.070 is unconstitutional because it does not contain adequate safeguards to control arbitrary administrative action. 95 Wn.App. at 961, 977 P.2d 1242. The Washington Supreme Court "affirm[ed] the result on more narrow grounds," holding that DOC erred by failing to promulgate its serious infraction rules under RCW 72.09.130 following enactment of RCW 9.94.070. Brown II, 142 Wash.2d at 59, 61, 11 P.3d 818. Because it resolved the case on nonconstitutional grounds, the court did not reach the issue of whether the statute was an unconstitutional delegation of power.2 Brown II, 142 Wash.2d at 63 n. 4, 11 P.3d 818.
The Brown I decision that RCW 9.94.070 is an unconstitutional delegation of power is not binding authority on this court; it is merely persuasive authority. And the Supreme Court did not reach the issue. Brown II, 142 Wash.2d at 63 n. 4, 11 P.3d 818. Thus, we examine whether RCW 9.94.070 is an unconstitutional delegation of authority as an open question.
Simmons first argues that RCW 9.94.070 lacks adequate safeguards against arbitrary administrative actions.
We presume that statutes are constitutional. State v. Blank, 131 Wash.2d 230, 235, 930 P.2d 1213 (1997). The party challenging a statute's constitutionality has the burden to demonstrate its unconstitutionality beyond a reasonable doubt. Blank, 131 Wash.2d at 235, 930 P.2d 1213.
The legislature may delegate legislative power if (1) it provides standards that in general terms define what is to be done and the administrative body that is to do it; and (2) procedural safeguards exist to control arbitrary administrative action and abuse of discretionary power. State v. Crown Zellerbach Corp., 92 Wash.2d 894, 900, 602 P.2d 1172 (1979) (citing Barry & Barry, Inc. v. Dep't of Motor Vehicles, 81 Wash.2d 155, 500 P.2d 540 (1972)). Here, RCW 9.94.070 satisfies the first prong by instructing DOC to adopt rules that designate the types of misconduct that constitute serious infractions. RCW 9.94.070(2). And RCW 72.09.130 provides guidance on how DOC is to adopt a disciplinary system by rule.
In examining the second prong, the sufficiency of procedural safeguards, we use the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Morris v. Blaker, 118 Wash.2d 133, 144-45, 821 P.2d 482 (1992) (). This test requires balancing (1) the private interest to be protected; (2) the risk of erroneous deprivation of that interest by the government's procedures; and (3) the government's interest in maintaining the procedures. Morris, 118 Wash.2d at 144-45, 821 P.2d 482.
The private interest here is the inmate's right to adequate procedural safeguards before being subjected to a felony prosecution. The process DOC followed in adopting its rules minimized the risk of an intrusion into that interest.
DOC's rulemaking process provided for public scrutiny and judicial review similar to that available for legislatively enacted statutes. In re Personal Restraint of Powell, 92 Wash.2d 882, 891, 602 P.2d 711 (1979) (citing Barry & Barry, 81 Wash.2d at 163-64,
500 P.2d 540). RCW 9.94.070(2) requires DOC to designate serious infractions under RCW 72.09.130, which in turn directs DOC to adopt by rule an incentive system that links inmate behavior with the receipt of earned early release days.
Although DOC is exempt from the Administrative Procedure Act's (APA) rulemaking requirements, RCW 34.05.030(1)(c), DOC nonetheless chose to follow those requirements when it promulgated rules designating the infractions listed in chapter 137-28 WAC as serious infractions under RCW 72.09.130.3 As part of the rulemaking process, DOC provided notice of proposed amendments, requested public comment, conducted a hearing on the amendments, and published the proposed amendments in the Code Reviser's Office.
DOC further minimized the risk of depriving Simmons of adequate procedural safeguards by advising him upon his admission to custody of his right to view the disciplinary code. The code contained notice that serious infractions could lead to felony prosecution. DOC also provided Simmons with the right to appeal disciplinary hearing findings to the prison superintendent, and the right to judicial review of disciplinary action taken against him. See WAC 137-28-190(2); WAC 137-28-380(1). And he had all the procedural safeguards inherent in a criminal trial. See RAP 16.4; see also In re Personal Restraint of Gronquist, 138 Wash.2d 388, 396, 978 P.2d 1083 (1999)
; In re Personal Restraint Petition of Arseneau, 98 Wash.App. 368, 371, 989 P.2d 1197 (1999).
The situation here is distinguishable from both Brown I and Powell. The disciplinary code reviewed in Brown I did not provide notice that commission of serious infractions could lead to felony prosecution. 95 Wash. App. at 959, 977 P.2d 1242. Nor had DOC provided notice of the proposed rules, requested public comment, or conducted a hearing on the rules, as it did before promulgating the rules that applied to Simmons. See Brown II, 142 Wash.2d at 61,
And similarly, in Powell, there was a lack of procedural safeguards. 92 Wash.2d at 893, 602 P.2d 711. There, the legislature had delegated the authority to promulgate rules that supply the elements of felonies under the Uniform Controlled...
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