[No. 34409-2-II. Division Two. May 15, 2007.]
[1] Appeal — Decisions Reviewable — Moot Questions — Public Interest — Factors. An appellate court may decide a technically moot case if it involves a matter of continuing and substantial public interest. In determining whether a moot case involves a matter of continuing and substantial public interest, a court considers (1) the public or private nature of the question presented, (2) the desirability of an authoritative determination for the future guidance of public officers, and (3) the likelihood of future recurrence of the question. [2] Prisons — Savings Accounts — Right To Withdraw Funds — Determination — Moot Case. The need to clarify the circumstances under which a prison inmate is entitled to withdraw funds from his or her personal inmate savings account is a matter of continuing and substantial public interest that may justify appellate review of a technically moot case. [3] Judgment — Summary Judgment — Determination — Single Conclusion From Evidence. A motion for summary judgment should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. [4] Prisons — Savings Accounts — Right To Withdraw Funds — Scope — Unfettered Access. Under RCW 72.09.111, prison inmates do not have unfettered, immediate access to the funds in their personal inmate savings accounts during their incarceration. [5] Administrative Law — Agency Authority — Decision on Application — Scope of Discretion. The legislature has the power to vest a public officer with the discretion to grant or deny applications in various situations. Public officers must exercise this discretion within legal bounds; they may not exercise it arbitrarily, capriciously, fraudulently, or without a factual basis sufficient to justify denial of an application. In short, administrative discretion may be exercised only according to fair and legal considerations. [6] Administrative Law — Agency Action — Judicial Review — Scope. In general, courts limit review of an administrative agency's independent decision to the agency's decision-making process. [7] Prisons — Savings Accounts — Right To Withdraw Funds — To Hire Attorney — Other Available Funds. Under RCW 72.09.111, which directs the Department of Corrections to maintain personal inmate savings accounts and to distribute funds to inmates upon their release from incarceration or for "emergencies," the department may deny an inmate's request to withdraw funds from the inmate's savings account to hire an attorney to represent the inmate at a parole hearing if the inmate has access to other funds sufficient to hire an attorney. [8] Prisons — Savings Accounts — Interest — Necessity — Governmental Taking. Inasmuch as the Department of Corrections has no duty to place an inmate's funds in an interest-bearing savings account, the department's failure to place an inmate's funds in an interest-bearing account does not constitute a governmental taking of a property interest. Nature of Action: A prison inmate filed a 42 U.S.C. § 1983 civil rights action against the Department of Corrections, the department secretary, and the superintendent of the prison, alleging that the department (1) committed constitutional violations by refusing to release funds from the inmate's personal inmate savings account so the inmate could hire an attorney to represent him at a parole hearing and (2) converted his personal funds, namely interest on the full amount in his savings account. The plaintiff sought damages, an injunction, and declaratory relief. Superior Court: The Superior Court for Thurston County, No. 04-2-01882-7, Chris Wickham, J., on January 20, 2006, entered a summary judgment in favor of the Department of Corrections. Court of Appeals: Holding that the plaintiff was properly denied access to the funds in his savings account to hire an attorney for the parole hearing and that he is not entitled to have his funds placed in an interest-bearing account, the court affirms the judgment. Glen E. Thomas-, pro se. Robert M. McKenna-, Attorney General, and Douglas W. Carr-, Assistant, for respondents. ¶1 HUNT, J. — Glen E. Thomas appeals the trial court's summary judgment dismissal of his 42 U.S.C. § 1983 civil rights action against the Washington Department of Corrections (DOC). He argues that the trial court erred in granting summary judgment to the State because the DOC violated his constitutional rights when it (1) denied his request to withdraw funds from his inmate savings account, (2) failed to credit his inmate savings account with interest, (3) refused to grant his motion for assistance of counsel from a fellow inmate, and (4) failed to make sure that he could clearly hear the summary judgment arguments via his telephone connection. We affirm. FACTS ¶2 Glen E. Thomas is an inmate at the Monroe Corrections Complex, Twin Rivers Unit. On June 18, 2004, he requested permission to withdraw $2,000 from his personal inmate savings account (PISA) to pay his attorney fees for an upcoming ".100 parole hearing." ¶3 Thomas filed a 42 U.S.C. § 1983 civil rights complaint against the DOC; DOC Secretary Joseph Lehman; and superintendent of the Monroe Corrections Complex, Gary Fleming. Pro se, Thomas alleged that the DOC had (1) committed constitutional violations by refusing to release $2,000 he requested from his PISA and (2) converted his personal funds, namely interest, on the full amount in his PISA. ¶4 Thomas and the DOC filed cross motions for summary judgment. The DOC argued that Superintendent Fleming had correctly determined that Thomas's professed need to pay for counsel to represent him at the parole hearing was not an emergency because Thomas had sufficient funds outside the DOC institution to pay these attorney fees. At the summary judgment hearing, Thomas, acting pro se and appearing via telephone, asked the trial court to allow a fellow inmate to provide him legal assistance. The trial court denied this request because it was filed late under CR 6. ¶5 Finding no genuine issue of material fact, the trial court ruled that (1) the DOC had acted within its discretion under RCW 72.09.111(3) when it denied Thomas's request to withdraw funds from his PISA, even though there is no statutory or administrative definition of "emergency" and (2) the DOC is not required to place PISAs in individual interest-bearing accounts. ¶6 Thomas appeals. ANALYSIS I. MOOTNESS ¶7 We first address the DOC's threshold argument that Thomas's appeal from its denial of his request for PISA funds is moot because he used other financial sources to hire an attorney to represent him at his release-eligibility hearing. Although Thomas's complaint for damages and an injunction is moot, ¶9 Accordingly, we consider Thomas's claim for declaratory relief. II. INMATE ACCESS TO PISA FUNDS ¶10 Thomas argues that we should reverse the trial court's summary judgment dismissal of his lawsuit against the DOC because the trial court erred in failing to recognize his right to use his property, i.e., his PISA funds, to hire counsel for an upcoming release-eligibility hearing. The DOC responds that the trial court properly applied the "reasonable definition" of "emergency" when it reviewed the DOC's exercise of its statutory discretion (1) in determining that Thomas's request for PISA funds was not an "emergency" under RCW 72.09.111(3) and (2) in denying his request for access to his PISA funds. A. Standard of Review B. Legislative Background ¶12 In 1995, the Washington Legislature enacted RCW 72.09.460, which requires all DOC inmates to participate in both education and work programs. RCW 72.09.460(1). The legislature intended this act to meet several objectives: (1) to defer increasing incarceration costs; (2) to create incentive programs for inmates to gain privileges through their education and work progress; (3) to allow inmates to obtain transferable skills for use after release from incarceration; and (4) "to assure that the department fulfills its mission to reduce offender recidivism, to mirror the values of the community by clearly linking inmate behavior to receipt of privileges, and to prudently manage the resources it receives through tax dollars." LAWS OF 1995, 1st Spec. Sess., ch. 19, § 1. C. "Emergency" Exception ¶14 The legislature did, however, carve out an exception to the general rule that the DOC was to hold inmate PISA funds for dispersal on release from confinement where "the [DOC] secretary determines that an emergency exists for the inmate, at which time the funds can be made available to the inmate in an amount determined by the secretary." RCW 72.09.111(3) (emphasis added). But, as both parties note, the legislature did not define "emergency" within the RCW 72.09.111(3) context. Thus, central to this appeal is the question of what constitutes such an "emergency" for purposes of inmate access to PISA funds before release under RCW 72.09.111(3). ¶15 But neither party has cited any applicable case law or any Washington Administrative Code regulation defining this type of "emergency" or the parameters of the DOC secretary's discretion when determining whether an inmate's prerelease request for access to his PISA constitutes an "emergency" falling within this statutory exception under 72.09.111(3). DOC 200.710 directive states: If the Office of Correctional Operations (OCO) Deputy Secretary determines there is a need for an exception to the prohibitions on access to mandatory savings account funds, s/he may make funds available to the offender. The OCO Deputy Secretary shall determine the amount of funds the offender may withdraw from his/her mandatory savings account. Clerk's Papers (CP) at 26 (emphasis added). D. DOC Discretion ¶16 At the outset, we explore the obvious possibility that, by its silence in defining "emergency," the legislature implic-itly delegated to the DOC the discretion to decide what constitutes an "emergency" and to determine whether there exists an "emergency" for a particular inmate seeking access to his PISA funds before his release from confinement. I have talked to my Risk [Management] Team who pointed out that I have just over $2500 spendable [sic] funds in my account. I discussed with my [Correctional Unit Supervisor] that I have been paying John Payseno another attorney to handle a family matter for me and have paid him just over $3700 to date. He bills me by monthly [sic] which is why I don't want to use my spendable [sic] balance as I will be unable to pay him. I also had funds on account with Leta Schattauer who will be representing me at the .100 hearing, but I had to send that money to John as well. Basically, I need to keep the funds I have to pay ongoing legal expenses leaving me primarily with the money in my savings account to pay for the .100 representation. Al Stickney thought you would need to know this information to process my request for the funds in my savings account. CP at 31. ¶20 The record also supports Fleming's second ground for denying Thomas's request—no emergency—because Thomas had access to funds other than his PISA account, which funds he did, in fact, use to hire an attorney to represent him at his release-eligibility hearing. Thus, Thomas had no arguable "emergency" or "need" III. PISA "INTEREST" ¶22 We have already held that Thomas was not entitled to access his PISA funds under the facts here. Nor has he demonstrated that, contrary to the DOC's explanation, that there is any accrued interest on his PISA funds due and owing to him. That Thomas wishes the DOC would place his PISA funds in an interest-bearing account does not establish a governmental "taking" of property that does not exist. ¶23 Accordingly, we affirm. ¶24 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. ARMSTRONG and PENOYAR, JJ., concur.