Burton v. Lehman , 153 Wash. 2d 416 ( 2005 )

¶17 (concurring) — I concur in the result reached by the majority. If we take all facts alleged by the petitioners in their pleadings as true, as CR 12(b)(6) requires, petitioners may have stated a claim for which relief could be granted. Therefore, the trial court’s dismissal was improper. I write separately, however, because I do not believe, as the majority holds, that RCW 72.02.045 requires the Department of Corrections (DOC) to pay for the transport of all inmate personal property upon an inmate’s transfer to a new institution.

Fairhurst, J.

¶18 RCW 72.02.045(3) requires the superintendent of each institution to “deliver [ ]” an inmate’s personal property upon transfer to another institution. It does not require that superintendents pay for the shipment of such property. On its own accord, DOC transports up to two boxes when an inmate is transferred to a new institution. Petitioners assert that DOC’s failure to pay to ship their property in excess of two boxes constitutes a failure to deliver personal property. The heart of the controversy, then, rests on the definition of “delivered” as it is used in RCW 72.02.045(3).

¶19 I agree with the majority that there can be actual and constructive delivery and that the sort of delivery at issue in this case is constructive because the correctional facility superintendents remain the custodians of inmate personal property. My disagreement with the majority, however, is when and how that delivery occurs. The majority construes delivery to mean that DOC physically transports an inmate’s property—at DOC’s own expense—from one institution to the next. I believe that delivery in the constructive sense is allowing the owners of the property to designate what happens to their property upon transfer from one facility to the next. Delivery does not require DOC to transport or pay for the shipment of all inmate personal property.

¶20 The majority appears to agree that it is the institution superintendents who continue to be the custodians of inmate property. The constructive delivery, then, is following the reasonable instructions of the owners in the potential relocation of their property. This happens at the point when inmates become aware that they will be transferred and continues for 6 or 12 months after the inmates arrive at their new institution. See WAC 137-36-040(3)(a). Inmates have several choices in determining how to manage the disposition of their property. Those choices include paying for the shipment of their property to the receiving institution, paying for shipment of their property to a non-incarcerated individual, deciding to leave their property at their former institution (while recognizing that it will be destroyed or donated within 6 or 12 months), or arranging for someone else to pick up their property within 6 months of transfer.⁵

¶21 DOC has adopted a regulation providing procedures it must follow when disposing of inmate property that is deemed to be abandoned. WAC 137-36-040. Sufficient process is built into those procedures. Id. Property left unclaimed is not presumed abandoned until six months have passed after an inmate has been transferred. WAC 137-36--040(3)(a). When inmates who have been transferred have no recorded next of kin or other individuals to which unclaimed property can be sent, property is not presumed abandoned for 12 months. Id. Inmates who are transferred have at least 6 months—and in some cases 12 months—to designate disposition of their property. Id. Once inmate property has been “abandoned” within the definitions set forth above, DOC may either destroy the property or donate it to a charitable nonprofit organization. WAC 137-36--040(3)(c). At least 30 days prior to such disposal, however, DOC must give written notice to the owner of its intent to dispose of the property. WAC 137-36-040(3)(e). Not only do inmates have 6 or 12 months to designate the disposition of their property upon transfer to a new institution, including raising money through wages, friends, or family to ship their property to their current location or elsewhere, they also get 30 days’ notice prior to the donation or destruction of the abandoned property. This is sufficient for DOC to have constructively “delivered” inmate property as set forth in RCW 72.02.045(3).

¶22 Because petitioners allege that DOC forces the choice of payment for shipment or destruction of property and thereby does not allow the option of having friends or relatives pick up their personal property if they are transferred, I would remand the case to the trial court for a factual determination of the issue. If petitioners’ allegations are found to be true, DOC may not have effectively delivered inmate property as required by statute. This is because, as the majority notes, there may be instances where inmates are indigent and unable to pay for the delivery of their property. Majority at 425. The majority also suggests there are instances where inmates would have “no available nonincarcerated persons to take possession.” Id. Petitioners made no such allegation in their complaint. Regardless, WAC 137-36-040(3)(a) provides that individuals with no recorded next of kin or person to whom unclaimed property can be sent, have 12 months to come up with the funds to ship their property to their present institution. Presumably this would also allow inmates 12 months to designate or locate someone to pick up their property. This gives inmates enough control over the fate of their property to constitute constructive delivery.

¶23 The law does not require DOC to pay for the transport of inmate property; it merely allows inmates to designate the disposition of their property within reason. Accordingly, I concur in the result.

Madsen and Bridge, JJ., and Ireland, J. Pro Tern., concur with Fairhurst, J.

5 The Court of Appeals found that friends and relatives of inmates were allowed to pick up inmate property but did not cite support for that finding. At oral argument, petitioners argued that friends and relatives were not being allowed to pick up property. DOC responded that it believed such conduct was being allowed, but it was not certain. This is an unresolved question of fact.

The parties also discussed during oral argument how inmate property is acquired. DOC asserted that all or almost all inmate property is acquired by inmates through their own funds while incarcerated (and not allowed to be brought to the institution by friends or relatives). The implication, therefore, is that inmates who have funds to purchase property while confined should have the money to ship their property when transferred to another institution. Again, this fact is not reflected in the record and should be developed during a factual hearing. I would hold merely that constructive delivery occurs by giving inmates reasonable choices in the disposition of their property, which does not require DOC to pay for shipment.