In re the Personal Restraint of Higgins , 152 Wash. 2d 155 ( 2004 )

Ireland, J.

In this case, we review whether the Department of Corrections (DOC) has jurisdiction to rehear an infraction while a personal restraint petition (PRP) concerning the infraction is pending in the appellate court, and whether double jeopardy principles preclude the rehearing. We hold that DOC has jurisdiction to conduct a rehearing and that DOC’s rehearing of the infraction does not violate the principles of double jeopardy. Therefore, we affirm the Court of Appeals’ decision.

FACTS

On July 9, 2002, prison authorities issued a serious infraction report charging petitioner, David Higgins, an inmate at Airway Heights Correction Center, with attempting to introduce marijuana into the prison facility in violation of WAC 137-28-260 (infraction 603). Prison officials learned through three confidential informants that Higgins had sent $300 to Ann Allen, directing her to use the money to buy and transfer marijuana to another inmate, Shane Morris.

The hearing officer relied on the written infraction report and information given by confidential informants in finding petitioner guilty of the charge. As a result, the hearing officer deducted 270 days out of petitioner’s good conduct time credit and sentenced him to 20 days of disciplinary segregation and 10 days of isolation.

In March 2003, petitioner filed a PRP in Division Two of the Court of Appeals asking the court to overturn the infraction and restore him to his previous status. The court directed the DOC to respond to the merits of petitioner’s PRP within 30 days. The DOC responded by expunging the challenged infraction and requesting the court’s permission to conduct a rehearing. Petitioner filed a response objecting to the DOC’s voluntary action to expunge and request for a rehearing.

On June 24, 2003, the Court of Appeals dismissed petitioner’s PRP and granted the DOC permission to rehear petitioner’s disciplinary infraction.

Petitioner filed a motion for discretionary review with this court, seeking review of the Court of Appeals’ unpublished order dismissing his PRP and permitting the DOC to rehear his infraction. We granted review.

On August 14, 2003, the DOC reheard the infraction while the motion for discretionary review was pending in this court. The hearing officer found petitioner guilty and imposed sanctions of 130 days loss of good conduct time credit, 20 days of disciplinary segregation, and 10 days of isolation.

Subsequently, petitioner filed a motion to supplement the record with the record of the August 14 rehearing and to amend his supplemental brief to include a request that this court declare the DOC’s rehearing void. The DOC did not object to the request to supplement the record but opposed the request to amend the supplemental brief.

ISSUES

(1) Should the court grant petitioner’s motion to supplement the record and amend his supplemental brief?

(2) Does the DOC have the jurisdiction to expunge a prison infraction and conduct a rehearing of the infraction while the petitioner’s PRP challenging the infraction is pending in the appellate court?

(3) Does the DOC’s rehearing of the infraction violate principles of double jeopardy?

STANDARD OF REVIEW

We review questions of law de novo. Rivett v. City of Tacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994).

ANALYSIS

Should the court grant petitioner’s motion to supplement the record and amend his supplemental brief?

Petitioner seeks to supplement the record, pursuant to RAP 9.10,¹ with documents pertaining to the rehearing and the subsequent sanctions imposed by the hearing officer. Petitioner also seeks to make additional arguments by way of a supplemental brief after the initial PRP was already filed, to include a request to declare the DOC’s rehearing and reimposition of sanctions void. DOC stipulates to the supplementation of the record, and we therefore grant petitioner’s motion to supplement the record. DOC opposes petitioner’s request to amend his supplemental brief, but provides no persuasive justification for denial. Under RAP 10.1(h), an appellate court “may in a particular case, on its own motion or on motion of a party, authorize or direct the filing of briefs on the merits other than those listed in this rule.” It is appropriate to grant petitioner’s motion to amend his supplemental brief pursuant to RAP 10.1(h).

Moreover, the court has inherent authority to consider issues raised in a supplemental brief when such consideration is necessary to a decision on the merits. Shoreline Cmty. Coll. Dist. No. 7 v. Employment Sec. Dep't, 120 Wn.2d 394, 402, 842 P.2d 938 (1992). Here, the issue raised in petitioner’s supplemental brief is the propriety of the DOC’s rehearing while petition for review is pending in this court. The issue thus goes to the heart of petitioner’s case, and it is proper for the court to accept briefing.

(2) Does the DOC have jurisdiction to expunge a prison infraction and conduct a rehearing of the infraction while petitioner’s PRP challenging the infraction is pending in the appellate court?

Petitioner claims the DOC lacked authority to expunge his infraction after he filed his PRP in the Court of Appeals challenging the infraction. He also argues that the DOC’s rehearing violated his constitutional right to freedom from double jeopardy. The Court of Appeals has reached different conclusions over these issues. In re Pers. Restraint of Leland, 115 Wn. App. 517, 61 P.3d 357, review denied, 149 Wn.2d 1025 (2003); In re Pers. Restraint of Goulsby, 120 Wn. App. 223, 84 P.3d 922 (2004).

In Leland, a DOC hearing officer found the prisoner guilty of testing positive for unauthorized drugs. The prisoner then brought a PRP seeking relief from the imposed sanctions, including lost good time credit. Leland, 115 Wn. App. at 521. The DOC reheard the infraction while the prisoner’s PRP was still pending rather than respond to the PRP on its merits. Id. at 524-25. The Court of Appeals, Division Three, focused on RAP 16.3(c) and RAP 16.11(b) in concluding that “Title 16 RAP confers upon the Court of Appeals (1) original jurisdiction of personal restraint petitions, and (2) the authority to direct or order the steps necessary to decide the appropriate disposition of the petition.” Leland, 115 Wn. App. at 527. In addition to RAP 16, the court relied on the principles of double jeopardy in holding that the “DOC lacks jurisdiction or authority to summarily conduct a rehearing of a personal restraint petition pending in the Court of Appeals.” Id. at 529-30, 532-33.

Despite involving similar circumstances, the Court of Appeals, Division One, rejected the Leland reasoning. Goulsby, 120 Wn. App. at 225. There, the inmate, Charles Goulsby, was found guilty of arranging for a controlled substance to be brought into prison. Id. at 226. Goulsby filed a PRP seeking to recover the good time credits he lost as a result of the infraction. Id. In response, the DOC expunged the infraction from the record and asked the court’s permission to hold a rehearing. Id. The Goulsby court disagreed with Leland primarily because the Leland court failed to consider RAP 16.4(d) in its analysis. 120 Wn. App. at 228. Relying on RAP 16.4(d) and the distinctions between prison disciplinary hearings and criminal prosecutions, the Goulsby court held that the DOC had jurisdiction to conduct a rehearing and that neither double jeopardy principles nor due process principles were violated by the rehearing. Id. at 228-29.

In the present case, the Court of Appeals, Division Two, in an unpublished order, also rejected Leland. The Higgins court specifically disagreed with the Leland court’s position that double jeopardy principles applied to prison disciplinary hearings. In disagreeing with Leland, the Higgins court pointed to several federal cases that found that double jeopardy did not bar a rehearing of a prison proceeding where the evidence introduced at the initial prison hearing was insufficient.

Petitioner argues that we should adhere to Leland and reverse the Court of Appeals. He argues that DOC lacks the jurisdiction to conduct a rehearing.

The Leland court cited to RAP 16.3(c) and RAP 16.11(b). Leland, 115 Wn. App. at 526-27. RAP 16.3(c) provides: “[t]he Supreme Court and the Court of Appeals have original concurrent jurisdiction in personal restraint proceedings in which the death penalty has not been decreed.” RAP 16.11(b) grants the chief judge the authority to determine “at the initial consideration of the petition the steps necessary to properly decide on the merits the issues raised by the petition.”

While RAP 16.3(c) and 16.11(b) support the proposition that appellate courts have exclusive jurisdiction over PRPs, these two sections of RAP 16, however, do not “address relief that can be granted outside of the personal restraint procedure.” Gouslby, 120 Wn. App. at 228. For instance, RAP 16.3(c) and RAP 16.11(b) do not preclude other governmental agencies and departments from resolving petitioners’ issues through alternative forms of relief. RAP 16.4(d), which the Leland court failed to consider, states that the “appellate court will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances.” Here, the DOC’s decision to expunge the record in response to petitioner’s PRP and to hold a rehearing was an adequate remedy under the circumstances. We hold that a pending PRP does not operate to divest the DOC of jurisdiction or authority to conduct a rehearing of the infraction.

(3) Does the DOC’s rehearing of the infraction violate principles of double jeopardy?

The double jeopardy clause of the United States Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. Similarly, article I, section 9 of the Washington Constitution provides that “[n]o person shall be . .. twice put in jeopardy for the same offense.” The federal and state double jeopardy clauses afford the same scope of protection. In re Pers. Restraint of Percer, 150 Wn.2d 41, 49, 75 P.3d 488 (2003); In re Pers. Restraint of Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000).

However, double jeopardy does not apply to the type of proceeding at issue in the present case. The term “ ‘jeopardy’. . . signifies the danger of conviction and punishment which the defendant in a criminal prosecution incurs when he is put on trial before a court of competent jurisdiction under an indictment sufficient in form and substance to sustain a conviction.” State v. Williams, 57 Wn.2d 231, 232, 356 P.2d 99 (1960) (emphasis added).

Prison disciplinary proceedings are not criminal prosecutions or judicial proceedings but are civil and remedial in nature. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); State v. Williams, 57 Wn.2d at 232; Goulsby, 120 Wn. App. at 229 (citing Turner v. Johnson, 46 F. Supp. 2d 655, 666-67 (S.D. Tex. 1999); Gorman v. Moody, 710 F. Supp. 1256, 1266 (N.D. Ind. 1989)). The double jeopardy clause is limited to criminal prosecutions. Thus, we hold that the DOC’s rehearing of petitioner’s disciplinary infraction hearing does not violate double jeopardy.

In addition to the distinction between the nature of prison and criminal proceedings, prisoners are not entitled to the same due process rights as defendants in criminal trials. See In re Pers. Restraint of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984) (citing Dawson v. Hearing Comm., Wash. State Penitentiary, 92 Wn.2d 391, 397, 597 P.2d 1353 (1979)). A prisoner has a protected liberty inter-rest in earning good time credit, Leland, 115 Wn. App. at 534 (citing In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 397, 978 P.2d 1083 (1999)). But, as explained by the United States Supreme Court, “one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison.” McDonnell, 418 U.S at 560.

In contrast to a criminal prosecution, where the fundamental priority is to ensure due process, the fundamental priority in a prison setting is to maintain the peace. The reason for this difference is that

[pjrison disciplinary proceedings . . . take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so. . . . The reality is that disciplinary hearings and the imposition of disagreeable sanctions necessarily involve confrontations between inmates and authority and between inmates who are being disciplined and those who would charge or furnish evidence against them. Retaliation is much more than a theoretical possibility; and the basic and unavoidable task of providing reasonable personal safety for guards and inmates may be at stake, to say nothing of the impact of disciplinary confrontations and the resulting escalation of personal antagonisms on the important aims of the correctional process.

Id. at 561-62.

The fact that prisoners are accorded rights different from those given to criminal defendants does not mean that prisoners have no due process rights available to them. Rather, when prisoners are subject to discipline for serious misconduct that may deprive them of liberty interests, they still must be afforded a minimum amount of procedural safeguards. Dawson, 92 Wn.2d at 397. For instance, in the present case, petitioner was entitled to notice of the alleged violation and, if relevant and not unduly hazardous, a right to call witnesses and present documentary evidence. See WAC 137-28-290(2).

However, prisoners “are not. . . entitled to the full panoply of rights due a defendant in a criminal proceeding, but rather such process as is appropriate in the circumstances.” In re Pers. Restraint of Young, 95 Wn.2d 216, 220, 622 P.2d 373 (1980). For example, in the present case, petitioner’s due process rights did not include the right of confrontation and cross-examination. WAC 137-28--290(3). Also, only under certain circumstances did petitioner have a right to have a staff advisor assist him in his representation. WAC 137-28-290(2)(e). Accordingly, as long as all of petitioner’s minimum due process protections were observed in the second proceeding, the decision by the DOC to rehear petitioner’s infraction while a PRP was still pending does not, in itself, violate the prisoner’s due process rights.

Additionally, petitioner fails to cite to any authority to support his claim that the DOC is precluded from rehearing an infraction when there was insufficient evidence at the first hearing. Case law exists that is to the contrary. See Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir. 2001) (holding that evidence in prison proceeding was insufficient to support charge and that the Texas Department of Corrections could “provide Broussard with a new, constitutionally adequate hearing within ninety days”); Gorman, 710 F. Supp. at 1266 (holding that Indiana’s conduct adjustment board’s decision to rehear a prison infraction was proper despite petitioner having been found not guilty in the first proceeding); Moore v. State, 481 So. 2d 914, 916 (Ala. Crim. App. 1985) (holding that a second administrative proceeding did not place prisoner in double jeopardy even though the disciplinary committee rendered a verdict of “not guilty” in the first proceeding).

Finally, public policy dictates a prompt correction of any errors in DOC prison proceedings. Under petitioner’s argument, however, some prisoners would be deprived of timely rehearings of their lost good time credit if the DOC were required to wait until their pending PRPs were decided by the appellate courts. Consequently, these prisoners may end up staying incarcerated longer than they would have been required to had the DOC conducted an immediate rehearing.

In the present case, for example, petitioner received a prompt remedy. Upon notification of alleged violations in petitioner’s first hearing, the DOC responded by expunging the record, thereby temporarily restoring petitioner’s good time credit. The DOC then proceeded to hold a new hearing in hopes of rectifying any alleged errors it may have committed in the first proceeding.

Petitioner further contends that public policy does not support allowing the DOC to rehear an infraction while a PRP is pending. He asserts that the DOC has no incentive to conduct a fair proceeding if it is allowed to rehear the case every time a mistake is alleged. Petitioner argues that the DOC can continue to expunge his record and hold multiple rehearings while, at the same time, repeating the errors of the earlier proceedings. We decline to presume such bad faith in the DOC.

In the event that petitioner believes that the rehearing was still fundamentally unfair, he is not without remedy. Petitioner is free to file another PRP challenging the result of this second hearing.

CONCLUSION

We reject Leland and adopt the reasoning of Goulsby. We hold that (1) petitioner is allowed to supplement the record and to amend his supplemental brief; (2) the rules of appellate procedure do not deprive DOC of jurisdiction to conduct a rehearing, once a PRP is filed; and (3) double jeopardy principles do not preclude rehearing. Therefore, we affirm the Court of Appeals and Higgins’ PRP is dismissed.

Johnson, Madsen, Bridge, Owens, and Faiehurst, JJ., concur.

1 RAP 9.10 provides that on the motion of a party, the appellate court may direct supplementation of the record on appeal “[i]f the record is not sufficiently complete to permit a decision on the merits of the issues presented for review . ..