In re the Personal Restraint of Dyer , 143 Wash. 2d 384 ( 2001 )

Ireland, J.

This Court granted review of a Court of

Appeals’ decision that dismissed Richard J. Dyer’s personal restraint petition, in which he claimed he had a right to extended family visits. We find the Court of Appeals properly determined that extended family visits are not a liberty interest and that the Department of Corrections did not act arbitrarily or capriciously in following the Division of Prisons Directive. We affirm.

FACTS

Richard J. Dyer, an inmate at Airway Heights Corrections Center (Airway Heights) since 1982, is serving a life sentence for the first degree rapes of two women: Ms. A in January 1980, and Ms. B in August 1980. A jury also convicted him of rape, burglary, and unlawful imprisonment charges involving his second wife, Ethel Acord. On appeal, the Court of Appeals, Division Two, reversed.¹ However, Ms. Acord’s sworn testimony was admitted during trial on the two rapes for which Dyer was convicted. State v. Dyer, No. 06162-7-II (Wash. Ct. App. Aug. 14, 1984).

Dyer has been married three times: to Janet Cutting from 1967 to 1972; to Ethel Acord from 1978 to 1981; and to his current wife, Rennetta, since 1981. In January 1972, Dyer’s first wife sought and received a restraining order against Dyer. In her motion and affidavit for the restraining order, Ms. Cutting provided a sworn statement that her husband “had been physically violent towards her,” and she was fearful that if he were not restrained, he would cause her bodily harm.²

In October 1980, Ms. Acord testified Dyer raped her when she returned to their home from a battered women’s shelter. Although Dyer has not been retried on the reversed counts of rape, burglary, and unlawful imprisonment, Dyer admitted in 1982 to his prison classification counselor that he had “only victimized his wife” and not the two other rape victims.³

In August 1981, Dyer married his current wife, Rennetta. They have three children, two of whom were born after Dyer and his family began participating in family visits. During a family visit, an inmate and his or her family member or members are placed in a private visiting unit, such as a mobile home or similar structure.

In January 1995, during an extended family visit, an inmate at Clallam Bay Corrections Center assaulted his wife with a kitchen knife. The state contends the assault would likely have ended in her death had the inmate not been shot and wounded by correctional staff. As a result of this incident, the Legislature enacted RCW 72.09.490, which provides the Department of Corrections (DOC) “shall establish a uniform policy on the privilege of extended family visitation.” RCW 72.09.490(1). Subsequently, DOC issued Division of Prisons Directive 590.100 relating to extended family visiting, which became effective on February 13, 1995.

At the time of implementing the directive, the Director of the Division of Prisons, Tom Rolfs, wrote a letter to all superintendents. The letter included guidelines that would be followed as part of the implementation. The guidelines provided that each inmate currently approved for participation in the extended family visits would be reviewed for eligibility under the new policy. A superintendent has discretion to disapprove any currently approved participant or pending application based upon failure to meet the provisions of the new policy. A one-time exception (grandfathering) for inmates may be made by the superintendents for inmates “who have been successfully participating in the program, or who have made application prior to January 10, 1995; and who are determined not to present security or safety concerns for the program or participants.”⁴ However, this one-time exception is not to be granted if it falls within policy provisions: including a history of domestic violence.

The new policy provides that inmates “may be excluded from participation if they have a documented history of domestic violence against any person.” Division of Prisons Directive 590.100(D)(4)(i) (emphasis added). As the Court of Appeals stated, this reflects the concern that “an inmate with such proclivities might abuse or take a family member hostage during an extended family visit.”⁵

To assure proper documentation, this directive required that any action taken with regard to an extended family visit “will be permanently filed in the Offender Central File, Section 4, with all supporting documents.”⁶ When the new directive was implemented, all inmates then participating in extended family visits were to have a record review to determine their eligibility. Dyer’s file was devoid of such documentation, and it does not appear he was reviewed under the new directive. Unaware of this oversight, staff at the Washington State Reformatory (Reformatory) allowed Dyer to continue participating in extended family visits.

In November 1995, Dyer was transferred from the Reformatory to Airway Heights, where authorities did review his suitability for continued participation in extended family visits. In compliance with the provisions of the directive, they terminated his eligibility due to his history of violence. Although in March 1996, DOC incorrectly concluded that Dyer’s current wife had been his victim, the record permits an inference that DOC relied on information of domestic violence against his former wives.

Dyer administratively appealed the denial to DOC headquarters. Initially, it was again reviewed by staff at Airway Heights and ultimately, on August 5, 1995, the Deputy Director of the Division of Prisons affirmed the decision to deny Dyer’s extended family visits. In doing so, he found that Dyer’s criminal history “clearly reflects a pattern of domestic violence as well as a number of brutal sexual assaults.”⁷ In fact, he questioned why Dyer was not terminated in February 1995, when a comprehensive review was supposed to have been conducted. In conclusion, the Deputy Director found that Dyer “clearly does not qualify for participation in the extended family visits program based on existing standards.”⁸

In March 1995, the Indeterminate Sentence Review Board (ISRB) considered Dyer for parole, but found him not parolable and added 60 months to his minimum term. The ISRB’s report noted that Dyer has a tendency toward denial of abuse of women.

PROCEDURAL HISTORY

Dyer has exhausted every administrative remedy available to him to address his denial by Airway Heights of his continued participation in the extended family visits program.

In December 1996, Dyer petitioned the Washington State Supreme Court for a writ of mandamus, asking the Court to compel DOC to allow him to participate in extended family visits. This case was later transferred to the Court of Appeals as a personal restraint petition (PRP). The PRP was denied on January 13, 1999, because of Dyer’s history of domestic violence.

Dyer then filed a motion for discretionary review, which was denied on March 29, 1999. Dyer also filed a motion for modification of the ruling in April 1999. On September 10, 1999, the Supreme Court remanded the case back to DOC for reconsideration of Dyer’s termination from the extended family visits program. In a letter to Dyer’s counsel, DOC Superintendent Dan Snyder informed counsel that he had reviewed Dyer’s case. Based on “legitimate penological reasons,” Snyder denied Dyer’s readmission to the extended family visits program.⁹ After Dyer’s counsel responded, Snyder reaffirmed his previous decision.

On May 4, 2000, this Court accepted review of Dyer’s PRP.

ANALYSIS

Standard of Review

To prevail on a PRP alleging constitutional error, the petitioner must show he or she is under restraint and the restraint is unlawful under the provisions of RAP 16.4(c). In re Personal Restraint of Addleman, 139 Wn.2d 751, 753, 991 P.2d 1123 (2000). Dyer has been restrained; he is incarcerated. He must show the denial of extended family visits is a condition or manner of restraint that is “in violation of the Constitution of the United States or the Constitution or laws of the State of Washington.” RAP 16.4(c)(6).

Courts review prison disciplinary proceedings to determine “whether the action taken was so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding.” In re Personal Restraint of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984). “A hearing is arbitrary and capricious only if no evidence supports the action taken.” In re Personal Restraint of Anderson, 112 Wn.2d 546, 549, 772 P.2d 510 (1989). “Thus, a hearing is not arbitrary if some evidence supports the conclusions of the prison disciplinary board.” Anderson, 112 Wn.2d at 549.

Liberty Interest

Due process protects against the deprivation of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. In the instant case, the question is whether Dyer has established a liberty interest in extended family visits.

Protected liberty interests “ ‘may arise from two sources—the Due Process Clause itself and the laws of the States.’ ” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989) (quoting Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983) ). The due process clause of the federal constitution does not, of its own force, create a liberty interest under the facts of this case, for it is well settled that an inmate does not have a liberty interest in the denial of contact visits by a spouse, relatives, children, and friends. Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984) . The denial of a prisoner’s access to a particular visitor “ ‘is well within the terms of confinement ordinarily contemplated by a prison sentence.’ ” Thompson, 490 U.S. at 461 (quoting Hewitt, 459 U.S. at 468). In addition, Dyer concedes that there is no claim of a constitutionally protected liberty interest in extended family visits. Therefore, Dyer has no constitutional interest in extended family visits protected by the due process clause itself.

However, state statutes or regulations can create a due process liberty interest where none otherwise would have existed. Thompson, 490 U.S. at 461. Prior to Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), for a state law to create a liberty interest, it had to have contained “ ‘explicitly mandatory language,’ ” in connection with the establishment of “ ‘specified substantive predicates,’ ” to limit discretion. Thompson, 490 U.S. at 463 (quoting Hewitt, 459 U.S. at 472). In Sandin, the United States Supreme Court held that liberty interests are not created by negative implications from mandatory language in prison regulations. Rather, to create a liberty interest, the action taken must be an atypical and significant deprivation from the normal incidents of prison life. Sandin, 515 U.S. at 484. There is a hardship in that Dyer cannot participate in the extended family visits program; however, this is not an atypical and significant hardship. Dyer still has regular visitation rights to spend time with his wife and children.

Extended family visitation is a privilege. Statutory language explicitly confirms that extended family visitation is a privilege.¹⁰ The privilege of extended family visits is not a normal incident of prison life. It is a privilege granted only to a few qualified inmates.

It is not in the best interest of the courts to involve themselves in the “day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone.” Sandin, 515 U.S. at 482. “[C]ourts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.” Sandin, 515 U.S. at 482.

The United States Supreme Court has recognized that states can interpret their own constitutions to provide greater protection for individual rights than the United States Constitution because each state has the “ ‘sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.’ ” State v. Gunwall, 106 Wn.2d 54, 59, 720 P.2d 808 (1986) (quoting Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980). “When asked to do so, this Court will consider whether Washington’s constitution provides greater protection than parallel federal provisions, but only if the argument adequately addresses the principles announced in State v. Gunwall.” State v. Lee, 135 Wn.2d 369, 387, 957 P.2d 741 (1998). Absent such an argument, “this Court will interpret the Washington constitution coextensively with its parallel federal counterpart.” Lee, 135 Wn.2d at 387. In addition, Washington’s due process clause does not afford a broader due process protection than the Fourteenth Amendment. See generally State v. Ortiz, 119 Wn.2d 294, 304, 831 P.2d 1060 (1992). Although the State analyzed the Gunwall factors, concluding a coextensive provision, Dyer failed to provide any analysis. Hence, in the absence of the petitioner’s Gunwall analysis, we presume a coextensive provision. Accordingly, we do not address Dyer’s contentions that more protection is required by the state constitution.

An individual claiming a protected interest must have a legitimate claim of entitlement to it. Thompson, 490 U.S. at 460. Although Dyer argues that he is an eligible candidate to continue in the extended family visits program because he has participated in the program, Dyer falls under the exception to extended family visits with his prior history of domestic violence to former spouses. Based upon the new policy, Dyer should have had his extended family visits terminated in February 1995. Therefore, he does not have administrative entitlement to such a privilege. In addition, Dyer argues that DOC relied on unsubstantiated hearsay of presentence reports alleging Dyer’s domestic violence against his former wives. However, the exception does not state convictions for domestic violence, but rather a documented history of domestic violence against any person. Division of Prisons Directive 590.100(D)(4)(i). Moreover, evidence rules do not apply to habeas corpus proceedings pursuant to ER 1101(c)(3).

Although Dyer was unable to establish that he has a liberty interest in extended family visits, he concedes that he was afforded administrative remedies. Dyer’s application was not only reviewed by staff at Airway Heights and DOC but has been reviewed numerous times by the Court of Appeals and the Supreme Court.

Dyer also contends that he has a Fifth Amendment right under the Washington and United States Constitutions. However, there are no arguments in which the Fifth Amendment is raised. Conclusory allegations of constitutional violations are insufficient to support a personal restraint petition. In re Personal Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). Hence, Dyer’s Fifth Amendment argument does not warrant review.

Abuse of Discretion

Dyer argues that DOC’s denial of extended family visit privileges is arbitrary and capricious because DOC did not follow the rules, regulations, and policies of Division of Prisons Directive 590.100. Dyer argues that while DOC has the discretion to deny extended family visit privileges to inmates with a documented history of domestic violence, the evidence of domestic violence in his case is weak. Dyer also argues estoppel, following his rationale that since he was previously approved for extended family visit privileges (prior to the new directive), he has earned the privilege to continue to participate in extended family visits.

“[R]eview of prison disciplinary proceedings is properly limited to a determination of whether the action taken was so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding.” Reismiller, 101 Wn.2d at 294. A decision made by an agency is “arbitrary and capricious” only if it is “ ‘willful and unreasoning action in disregard of facts or circumstances.’ ” United Parcel Serv., Inc. v. Dep’t of Revenue, 102 Wn.2d 355, 365, 687 P.2d 186 (1984) (quoting Skagit County v. Dep’t of Ecology, 93 Wn.2d 742, 749, 613 P.2d 115 (1980)). An action can be depicted as arbitrary and capricious only if the agency’s action is wholly unsupportable. In re Stockwell, 28 Wn. App. 295, 302, 622 P.2d 910 (1981).

A broader scope of review is undesirable in that it would tend to undermine prison administrators’ decisions and lead to greater involvement of the courts in matters of internal prison discipline.

We find the documented history of domestic violence against two former wives compelling, in spite of the absence of any history of abuse by Dyer on extended family visits.

Dyer does not meet the criteria for participation in the extended family visits program as laid out by rule, and DOC is following the language of its own policies. The agency’s actions are not arbitrary and capricious; they are supported by a documented history of domestic violence and a criminal conviction showing a pattern of abuse toward women. Even petitioner’s supplemental brief states that “while DOC is correct in asserting that Mr. Dyer may be excluded because of a documented history of domestic violence, it is not required to do so.”¹¹ Moreover, Dyer admitted in 1982 to his prison classification counselor that he had “victimized his wife.”¹² In essence, Dyer has conceded that DOC acted properly; he contends, however, that since DOC has the discretion to violate its own standards, the agency should extend the privilege of visitation to a noncomplying inmate. At best, this argument confuses “arbitrary and capricious” review with de novo review.

Even if an inmate were qualified to participate in extended family visits, “if it is determined there is reason to believe that an offender ... is a danger to him/herself, the visitor(s), or to the orderly operation of the program, the Superintendent may exclude the offender from the program.”¹³ This determination may be based upon, but is not limited to, the inmate’s crime, and current and prior behavior. Dyer has conceded that he may be excluded from the program because of a documented history of domestic violence. However, even if he were an eligible inmate, the superintendent has the authority to weigh the danger factor as well as the orderly operation factor and decide to deny, suspend, or terminate the extended family visits privilege.¹⁴

Adequate Review

Dyer argues that he should be entitled to a reference hearing because he has been unable to provide proof, not available to him without the discovery process, to show DOC reviewed his suitability for extended family visits under the new policy.

To support a request for a reference hearing, “the petitioner must state with particularity facts which, if proven, would entitle him to relief.” In re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Rice continues as follows:

If the petitioner’s allegations are based on matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief. If the petitioner’s evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence.

Id.

Dyer’s history of domestic violence is not outside the existing record. Incidents are found in both the presentence investigation report and the unpublished opinion of Dyer’s conviction. Moreover, Dyer has not requested a reference hearing with particularity as to the facts. Rather, his counsel has provided faxed responses from the superintendent at the Reformatory about the review process for extended family visits.

Dyer argues that he should receive a writ of mandamus requiring Airway Heights and DOC to review his suitability to participate in the extended family visits program. Dyer argues that the suggestion to reevaluate will fall on deaf ears unless this Court not only mandates Airway Heights and DOC to follow Division of Prisons Directive 590.100 but also gives guidance to ensure against abuse of discretion.

Mandamus is an appropriate action to compel a state official to comply with law when the claim is clear and there is a duty to act. Walker v. Munro, 124 Wn.2d 402, 408, 879 P.2d 920 (1994). On the other hand, the action of mandamus is not proper to compel a discretionary act. State ex rel. Burlington N., Inc. v. Wash. Utils. & Transp. Comm’n, 93 Wn.2d 398, 410, 609 P.2d 1375 (1980). The act of mandamus compels performance of a duty, but cannot lie to control discretion. Benedict v. Bd. of Police Pension Fund Comm’rs, 35 Wn.2d 465, 475, 214 P.2d 171 (1950).

The directive specifically states that extended family visits must be approved by the superintendent, and that the superintendent has the authority to approve, deny, suspend, or terminate visits.¹⁵ In addition, the new policy provides that inmates “may be excluded from participation if they have a documented history of domestic violence against any person.”¹⁶ Since the superintendent has the discretion to grant or deny extended family visits according to policy, a mandamus action is not proper.

CONCLUSION

The Court of Appeals properly determined that Dyer was not entitled to extended family visits under the Division of Prisons Directive. The DOC did not act arbitrarily or capriciously in determining Dyer’s eligibility for the program. Dyer’s application for extended family visits has had adequate review through many administrative avenues.

In sum, finding that the extended family visits program is a privilege, and that privileges do not constitute a liberty interest, we dismiss the petition under RAP 16.4(c)(6). We therefore affirm the Court of Appeals’ decision.

Smith, Madsen, and Bridge, JJ., and Guy, J. Pro Tern., concur.

1 The conviction was reversed because if the count concerning Ms. Acord had been tried separately, the forcible rapes of Ms. A and Ms. B would not have been admissible to prove nonconsent. Having received a life sentence on the two other counts, Dyer was not retried on the counts concerning Ms. Acord. State v. Dyer, No. 06162-7-II, slip op. at 12 (Wash. Ct. App. Aug. 14, 1984).

2 Pre-Sentence Investigation, No. 81-1-00398-1 (Kitsap County Super. Ct. Feb. 16, 1982) at 9.

3 Overview of Pre-Sentence Investigation (Mar. 3, 1982) at 1.

4 Resp’t’s Suppl. Br., App. E, Letter from Tom Rolfs to the superintendents (Feb. 24, 1995) at 2.

5 Order Dismissing Pet., No. 06162-7-II (Jan. 13, 1999) at 4.

6 Division of Prisons Directive 590.100(E)(8).

7 Resp’t’s Suppl. Br., App. F, Letter from Jim Blodgett to Leta Schattauer (Aug. 8, 1996).

8 Id.

9 Letter from Superintendent Dan Snyder to Leta Schauttauer (Sept. 30, 1999).

10 RCW 72.09.470 states, in pertinent part, as follows:

To the greatest extent practical, all inmates shall contribute to the cost of privileges. The department shall establish standards by which inmates shall contribute a portion of the department’s capital costs of providing privileges, including television cable access, extended family visitation, weight lifting, and other recreational sports equipment and supplies.

11 Pet’r’s Suppl. Br. at 9.

12 Overview of Pre-Sentence Investigation (Mar. 3, 1982) at 1.

13 Division of Prisons Directive 590.100(C)(3).

14 Division of Prisons Directive 590.100(C)(2). In addition, Division of Prisons Directive 590.100(B)(1)(d)-(e) states: “(d). The Superintendent or designee may terminate a family visit, (e). The Superintendent or designee may interrupt or cancel scheduled visits.”

15 Division of Prisons Directive 590.100(C)(2).

16 Division of Prisons Directive 590.100(D)(4)(i).