105 Wn.2d 161, IN RE AYERS

CITE:          105 Wn.2d 161, 713 P.2d 88

               IN RE AYERS

CAUSE NUMBER: 51181-1, 51601-4

FILE DATE:     January 23, 1986

CASE TITLE: In the Matter of the Personal Restraint of
               Susan Ayers, et al, Petitioners.

In the Matter of the Personal Restraint of
George W. Lover, Petitioner.

[1] Criminal Law - Punishment - Probation - Statutory Provisions - Vagueness. A statute establishing executive discretion in granting or denying privileges to convicted persons does not need to be as specific as a statute defining criminal conduct.

[2] Criminal Law - Punishment - Probation - Statutory Provisions - Validity. RCW 9.95.100, which limits parole to inmates that the parole board believes are rehabilitated and fit subjects for release, is not unconstitutionally vague.

[3] Criminal Law - Punishment - Probation - Minimum Term - Effect - Due Process. The establishment of a minimum term under prior probation statutes does not create a liberty interest in the potential of parole which invokes due process safeguards when an inmate is held beyond such minimum term.

[4] Constitutional Law - Equal Protection - In General. Constitutional equal protection concepts do not require identical treatment of persons who are in fact different.

[5] Constitutional Law - Due Process - Liberty Interest - Agency Regulations. Expectations created by administrative regulations in an area affecting personal liberty create a liberty interest which may invoke due process protections.

NATURE OF ACTION: Personal restraint petitions involving several inmates who were held beyond their original minimum terms or whose minimum terms were extended.

Supreme Court: Holding that the applicable statutes were valid, that there were no constitutional liberty interests involved, and that there were no equal protection violations, but that the parole board had not followed its own regulations, the court DENIES the petitions and REMANDS the matters to the parole board for procedural corrections.



VALERIE L. HUGHES on behalf of the American Civil Liberties Union, amicus curiae for petitioners.


MAJORITY OPINION: A personal restraint petition was brought on behalf of five prisoners. All, with one exception, are confined beyond their original minimum terms as set by the Board of Prison Terms and Paroles. A separate petition by Lover was consolidated. All petitioners allege that they are mentally ill and/or developmentally disabled. They assert violations of due process, equal protection and state statutes.

Petitioners' crimes were committed prior to July 1, 1984, and, therefore, they come within the indeterminate sentencing scheme of RCW 9.95, rather than the Sentencing Reform Act of 1981, RCW 9.94A, which is generally effective for crimes committed after July 1, 1984. RCW 9.94A.905.

The scheme of determining release dates is as follows: (a) Under RCW 9.95.040 the Board fixes the minimum term with certain statutory minimums not applicable here; (b) RCW 9.95.052 authorizes a redetermination of the minimum term; (c) RCW 9.95.070 permits time credit reductions for good behavior; and (d) RCW 9.95.080 allows redetermination of the minimum for infractions.

The critical language in this case is contained in RCW 9.95.100: "The board shall not, however, until his maximum term expires, release a prisoner, unless in its opinion his rehabilitation has been complete and he is a fit subject for release."

In summary, we hold (1) that RCW 9.95.100 is not unconstitutionally vague; (2) that petitioners do not have a protected liberty interest in parole release at the expiration of the Board set minimum terms; (3) that the procedures used for parolability hearings are constitutionally adequate, when followed; (4) petitioners were not denied equal protection; and (5) there was no violation of statutory duties by the State. We thus deny the petitions but return these matters to the Board for further action as described hereafter.

While there are some factual differences among petitioners, the common thread of the allegations are (1) a minimum term less than the maximum was set; (2) one or more parolability hearings were held; (3) the petitioners were denied parole; and (4) minimum terms were extended, in some cases, to the maximum.

[1, 2] Petitioners' first challenge is that RCW 9.95.100 is unconstitutionally vague, claiming that the provision that the Board shall not parole an inmate "unless in its opinion his rehabilitation has been complete and he is a fit subject for release" is so standardless that it violates due process.

The cases relied upon by petitioners are distinguishable. SEATTLE v. DREW, 70 Wn.2d 405, 423 P.2d 522, 25 A.L.R.3d 827 (1967); BELLEVUE v. MILLER, 85 Wn.2d 539, 536 P.2d 603 (1975); and STATE v. MACIOLEK, 101 Wn.2d 259, 676 P.2d 996 (1984), all involved laws which defined the proscribed conduct, I.E., created the crime. The principle of adequate specificity in creating a crime is quite a different matter from the discretionary exercise of statutory authority by the executive branch. One proscribes certain conduct and attaches criminal penalties; the other grants power to the Board to make wholly discretionary determinations over convicted persons in granting or denying a privilege. JANUARY v. PORTER, 75 Wn.2d 768, 453 P.2d 876 (1969).

Petitioners' attempt to analogize to other cases, E.G., SANDS v. WAINWRIGHT, 357 F. Supp. 1062, 1390 (M.D. Fla.), REV'D ON OTHER GROUNDS, 491 F.2d 417 (5th Cir. 1973) and GRANT CY. v. BOHNE, 89 Wn.2d 953, 955, 577 P.2d 138 (1978), also fails since those cases likewise dealt with determination of proscribed conduct (standards of prison behavior and zoning prohibitions), not the exercise of discretionary executive power. The statute is constitutional.

Next, petitioners argue that if the statute is constitutional, they still have been denied due process since the Board must afford them certain procedural safeguards since a protected liberty interest is at stake.

[3] The controlling premise is whether petitioners have a protected liberty interest in the POTENTIAL of parole. The existence of that interest must be established before due process requirements come into play. As pertinent here, U.S. Const. amend. 14 and Const. art. 1, 3 require a deprivation of liberty before imposition of the due process mandate of either constitution.

Petitioners have no such liberty interest in the potential of parole. The definitive case is GREENHOLTZ v. INMATES, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979). The Court said:

"     There is no constitutional or inherent right of
      a convicted person to be conditionally released before
      the expiration of a valid sentence. The natural desire
      of an individual to be released is indistinguishable from
      the initial resistance to being confined. But the conviction,
      with all its procedural safeguards, has extinguished that
      liberty right: "[G]iven a valid conviction, the criminal
      defendant has been constitutionally deprived of his liberty."
      MEACHUM v. FANO, 427 U. S. 215, 224, [49 L. Ed. 2d 451,
      96 S. Ct. 2532] (1976).

Decisions of the Executive Branch, however serious
      their impact, do not automatically invoke due process
      protection; there simply is no constitutional guarantee
      that all executive decisionmaking must comply with standards
      that assure error-free determinations. See ID., at 225;
      MONTANYE v. HAYMES, 427 U. S. 236 [49 L. Ed. 2d 466,
      96 S. Ct. 2543] (1976); MOODY v. DAGGETT, 429 U. S. 78,
      88 n.9 [50 L. Ed. 2d 236, 97 S. Ct. 274] (1976). This
      is especially true with respect to the sensitive choices
      presented by the administrative decision to grant parole

A state may, as Nebraska has, establish a parole
      system, but it has no duty to do so. Moreover, to insure
      that the state-created parole system serves the public
      interest purposes of rehabilitation and deterrence, the
      state may be specific or general in defining the conditions
      for release and the factors that should be considered
      by the parole authority. It is thus not surprising that
      there is no prescribed or defined combination of facts
      which, if shown, would mandate release on parole. . .

Respondents suggest two theories to support their
      view that they have a constitutionally protected interest
      in a parole determination which calls for the process
      mandated by the Court of Appeals. First, they claim that
      a reasonable entitlement is created whenever a state provides
      for the POSSIBILITY of parole. Alternatively, they claim
      that the language in Nebraska's statute, Neb. Rev. Stat.
      83-1,114(1) (1976), creates a legitimate expectation of
      parole, invoking due process protections.

. . .

The fallacy in respondents' position is that parole
      RELEASE and parole REVOCATION are quite different. There
      is a crucial distinction between being deprived of a liberty
      one has, as in parole, and being denied a conditional
      liberty that one desires. . . .

. . .

The parole-release decision, however, is more subtle
      and depends on an amalgam of elements, some of which are
      factual but many of which are purely subjective appraisals
      by the Board members based upon their experience with
      the difficult and sensitive task of evaluating the advisability
      of parole release. Unlike the revocation decision, there
      is no set of facts which, if shown, mandate a decision
      favorable to the individual. The parole determination,
      like a prisoner-transfer decision, may be made
      "for a variety of reasons and often involve[s] no more
      than informed predictions as to what would best serve
      [correctional purposes] or the safety and welfare of the
      inmate." MEACHUM v. FANO, 427 U. S., at 225.
      The decision turns on a "discretionary assessment of a
      multiplicity of imponderables, entailing primarily what
      a man is and what he may become rather than simply what
      he has done." Kadish, The Advocate and the Expert-Counsel
      in the Peno-Correctional Process, 45 Minn. L. Rev. 803,
      813 (1961).

The differences between an initial grant of parole
      and the revocation of the conditional liberty of the parolee
      are well recognized. In UNITED STATES EX REL. BEY v.
      CONNECTICUT BOARD OF PAROLE, 443 F. 2d 1079, 1086 (1971),
      the Second Circuit took note of this critical distinction:

"It is not sophistic to attach greater importance to a
      person's justifiable reliance in maintaining his conditional
      freedom so long as he abides by the conditions of his
      release, than to his mere anticipation or hope of freedom."

. . .

That the state holds out the POSSIBILITY of parole
      provides no more than a mere hope that the benefit will
      be obtained. BOARD OF REGENTS v. ROTH, 408 U. S. [564],
      . . . 577 [33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)].
      To that extent the general interest asserted here is no
      more substantial than the inmate's hope that he will not
      be transferred to another prison, a hope which is not
      protected by due process. MEACHUM v. FANO, 427 U. S.,
      at 225; MONTANYE v. HAYMES, SUPRA. (Footnote omitted.) GREENHOLTZ, at 7-11.

Petitioners contend that two of this court's decisions mandate a different result than GREENHOLTZ. We disagree. In MONOHAN v. BURDMAN, 84 Wn.2d 922, 530 P.2d 334 (1975), the Board in fact had made a determination that the petitioner was a fit subject for parole, had ordered a parole and established a fixed date for release. We held that minimal due process safeguards attached to the procedure to rescind the parole grant as of a specific date. Thus the action was more akin to a parole revocation proceeding than the determination of eligibility for parole.

IN RE SINKA, 92 Wn.2d 555, 599 P.2d 1275 (1979) involved the original setting of the minimum term where there are statutory requirements as to matters to be considered by the Board. RCW 9.95.030, .031, and .040. We were concerned that the records upon which the determination of the original setting was made allegedly contained misleading or inaccurate information. Again that issue is different from the proceedings under RCW 9.95.100 where the Board is evaluating parolability under the very generalized standard authorized by the Legislature. These petitioners make no allegations of misleading or inaccurate information. They, instead, quarrel with the lack of certain procedures, discussed in part hereafter, and dispute the conclusion of the Board. It is self-evident that if the inmate is not parolable or there is not an acceptable plan of parole, then the minimum term is necessarily extended. The Board has no authority to release the inmate before the maximum is served. It is noted that the statute PROHIBITS the Board from releasing prior to service of the maximum UNLESS the Board, IN ITS OPINION, finds the two stated conditions have been met. RCW 9.95.100.

[4] Petitioners next raise an equal protection issue. They contend that, as mentally ill or developmentally disabled persons, they are treated differently than other potentially parolable persons. Those allegations may well be correct, but we know of no principle that says that people who are IN FACT different, through no fault of their own, must be treated the same as persons who are IN FACT different from those who assert they must be treated the same as others. The VERY assertion denies the individuality of people. Equal protection requires equal treatment; it does not make people equal.

[5] While we do not find a constitutional basis for a protected liberty interest, the Board, by its own regulations, has created such an expectation that should be recognized and followed. That is the second holding of GREENHOLTZ v. INMATES, SUPRA.

WAC Title 381, rule 5.170 states:

"Statement of Findings and Conclusions. The Board will
      make a concise written statement of findings and conclusions
      in each case heard under the provisions of this Chapter.

This record is woefully lacking in compliance with this regulation. For example, one file states the Board's decision: "Minimum term ten years and five of that is mandatory. Minimum term ten years on count two and that's consecutive and reschedule . . . progress meeting." Exhibit L (Personal Restraint Petition). Then, under reasons for decision, the order recites three sexual attacks about which we know nothing from the record, makes a conclusory statement that the inmate is a "retard, but violent and homicidal." What the rule requires, bearing in mind that the result deals with the very liberty of the person, is reasons, not conclusions. Equally lacking is a meaningful opportunity for the development of a potentially acceptable plan.

We return these cases to the Board, without criticism or evaluation of their immensely difficult task, with directions to comply with their own rules.

CONCURRING JUDGES: Dolliver, C.J., and Utter, Dore, Pearson, Andersen, Callow, Goodloe, and Durham, JJ., concur.