Brown v. Mizner ( 1995 )

No. 95-045
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
ANTHEL L. BROWNand
DEWEYE. COLEMAN,
Petitioners & Appellants,
v.
HONORABLETED MIZNER, District SEP 07 19%
Judge of the Third Judicial
District of the State of Montana,
Powell County,
Respondent & Respondent.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Anthel L. Brown and Dewey E. Coleman, Deer Lodge,
Montana (pro Se)
For Respondent:
David L. Ohler, Department of Corrections, Helena,
Montana
Submitted on Briefs: August 3, 1995
Decided: September 7, 1995
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
This is an appeal from an order and opinion in the Third
Judicial District Court, Powell County, denying Anthel L. Brown and
Dewey E. Coleman's petition for additional good-time credits for
unit work done prior to July 1982 and denying petitioners'
application for habeas corpus.
We affirm.
We consider the following issues on appeal:
1. Did the District Court abuse its discretion in denying
petitioners' additional good time for work done prior to July 1982?
2. Are petitioners entitled to a writ of habeas corpus based
on the Department of Correction's denial of the petitioners'
liberty interest in good-time credits for work done prior to July
1982?
This appeal comes to the Court following a disjointed
procedural history involving different petitioners. Several
inmates at the Montana State Prison filed writs of habeas corpus in
the Third Judicial District Court seeking retroactive application
of good-time credits in light of a U.S. District Court's decision.
In that case, the court ruled that § 53-30-105, MCA, created a
protected liberty interest. An interest that ensured the receipt
of good time while an inmate was employed by the Montana State
Prison. The decision has since been appealed by the Department,
and the Ninth Circuit Court reversed and remanded. Lattin v.
McCormick (9th Cir. 1995), 46 F.3d 1142.
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1n the meantime, a number of hearings concerning the awarding
of additional good time for employment were held in 1993. Basing
his decision on a recent Montana Supreme Court case, Judge Robert
BOYd I ruled the award of good-time credit was a discretionary
determination, and therefore, denied the inmates' petition for
writs of habeas corpus. Remington v. Dept. of Corrections (1992),
255 Mont. 480, 844 P.2d 50.
The inmates then appealed to the Supreme Court. Arledge,
et al. v. McCormick (1993), 257 Mont. 543, 857 P.2d 738. This
Court found for the petitioners on the grounds that the Department
of Corrections failed to adopt rules and provide the petitioners
with the appropriate good-time credits. The Department filed a
motion for rehearing showing that the petitioners had been provided
with good-time credits for their employment as unit workers under
a recent administrative decision. On July 1, 1993, this Court
granted the motion for rehearing and ordered a full and complete
record upon which a decision could be made. The order denied the
petitioners' writ of mandamus and directed future petitions
concerning good-time credits under § 53-30-105, MCA, to be filed
with the Third Judicial District Court in order to ensure a full
and complete record.
In March 1994, petitioners refiled their petition in the Third
Judicial District. Before the hearing in this case, several
motions were filed concerning the Department's failure to calculate
and provide the additional good-time credits for petitioners.
Also, as mentioned earlier, the Department made an important
3
administrative decision to award all inmates, regardless of the
status of their employment, good-time credit for work done after
July 1982. The petitioners received this additional credit. This
left only the question of good-time credits for work done before
July 1982.
ISSUE 1
Did the District Court abuse its discretion in denying
petitioners additional good time for work done prior to July 1982?
Prior to 1982, the Montana State Prison allotted good-time
credit based on custody classifications as provided in
5 53-40-105(l), MCA. There was no set departmental policy; inmates
were granted good-time credits ranging from 10 to 15 days per
month. In July 1982, the Legislature added a second provision
concerning good time with regard to employment, § 53-30-132, MCA.
Based on this statute, the Department adopted a written policy
entitling inmates who participated in specific on-the-job training
or vocational work programs to receive 13 days per month of
good-time credits, in addition to credit allowable under
5 53-30-105(a) - (c), MCA. Prison Inmate Good-time Policv NO. 505,
October 1, 1982. At this time, petitioners did not qualify under
this provision for the extra credits because of their job status as
unit workers.
Then, in 1992, the Department adopted a policy allowing the
Department to consider all employment when determining good time
because of the inherent educational value. Accordingly,
petitioners have received retroactive good time for work done prior
4
to 1992, but after July 1982. The basis of petitioners' argument
is that if employment is now considered when determining good time
based on the educational value, then employment should always have
been considered when determining good time.
The petitioners are seeking to expand subsection (d) of
5 53-30-105, MCA, concerning education to include employment prior
to 1982:
53-30-105. Good time allowance. (1) The department of
corrections and human services shall adopt rules
providing for the granting of good time allowance for
inmates employed in any prison work or activity and to
implement subsection (5). The good time allowance shall
operate as a credit on the inmate's sentence as imposed
by the court, conditioned upon the inmate's good behavior
and compliance with the rules made by the department or
the warden. The rules adopted by the department under
this subsection may not grant good time allowance to
exceed:
id; . 13 days per month for those inmates enrolled
. in
school who successfully complete the course of study or
who while so enrolled are released from prison by
discharge or parole . . .
However, the plain language of the statute does not provide for,
let alone mandate, the award of additional good-time credits based
upon employment. The District Court found the Department's
discretionary authority for the similar treatment of work and
educational pursuits became possible only after the passage of
5 53-30-132, MCA.
we hold that the District Court did not abuse its discretion
in denying petitioners additional good-time credit for work done
prior to July 1982.
ISSUE 2
Are petitioners entitled to a writ of habeas corpus based on
the Department of Correction's denial of the petitioners' liberty
interest in good-time credits for work done prior to July 1982?
A liberty interest may be created by state statute if there
are substantive regulations on the exercise of official discretion.
Baumann v. Arizona Dept. of Corrections (9th Cir. 1985), 754 F.2d
841. In this case, the petitioners argue their liberty interest
lies in the Department's obligation to adopt rules for the granting
of good time for inmates employed in "any" prison work or activity
under 5 53-30-105, MCA.
This Court recently looked at the issue of liberty interests
in relation to good time. Reminqton, 844 P.2d 50. In that case,
an inmate argued he had a liberty interest in good time based on
his participation in a correspondence course. The Court, in its
holding, found the Department had "virtually unfettered discretion"
in establishing the rules that govern the application of good time.
Reminqton, 844 P.2d at 52.
Since the Department's grant of authority is entirely
permissive; there is no liberty interest created through the
substantial statutory regulation of the Department's official
discretion. The statute contains no mandated "shallstl for the
rules it directs the Department to make. Reminqton, 844 P.2d at
52. Accordingly, the inmates have no liberty interest in the
rules. The petitioners' extension of a liberty interest in the
Department's obligation to adopt rules for the granting of good
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time would be inconsistent with the logic of the Reminqton
decision.
Therefore, we hold that a writ of habeas corpus is
inappropriate because the inmates do not have an unconstitutional
restraint on their freedom due to the Department's denial of
good-time credit. Remington, 044 P.2d at 53.
Petitioners' application for a writ of habeas corpus is
denied.
Pursuant to Section I, Paragraph 3 cc), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
Justice
We Concur: