IN RE: Etta WESTFALL on Habeas Corpus.

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Court of Appeal, Fourth District, Division 2, California.

IN RE: Etta WESTFALL on Habeas Corpus.

Cr. 10414.

Decided: February 07, 1980

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief, Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl Phaler, Alan S. Meth and Michael D. Wellington, Deputy Attys. Gen., for appellant. Rowan K. Klein, Beverly Hills, Quin Denvir, State Public Defender, and Richard Lennon, Deputy State Public Defender, for respondent.

OPINION

This appeal is by the People of the State of California from an order granting habeas corpus relief to Etta Westfall, an inmate of the California Institution for Women at Frontera. The petition for a writ of habeas corpus alleged that Westfall's reclassification from medium to close custody without a hearing denied her due process of law under both the federal and state Constitutions.

The trial court agreed and held the action of the Institutional Classification Committee at the California Institution for Women imposing close custody on inmate Westfall null and void because of the Committee's failure to provide a hearing comporting with the requirements of due process.1

The People make the following contentions on appeal.

1. Westfall did not have a state created right to remain in medium custody; therefore, no due process hearing was required to raise her to close custody.

2. Even if some hearing is required incident to a change in custody levels, no more is required than the procedures outlined in Wolff v. McDonnell (1974) 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935.

In Wolff the United States Supreme Court recognized that, while many of the rights and privileges of a citizen may be diminished or be unavailable because of considerations of our penal system and the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned. The court held that prisoners retain rights under the due process clause of the United States Constitution, and that although these rights are “subject to restrictions imposed by the nature of the regime to which they have been lawfully committed . . . , there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” (Wolff v. McDonnell, supra, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951.)

Applying this accommodation principle to procedures established by the State of Nebraska for depriving prisoners of “good-time credits,” the court held that where the state itself has not only provided a statutory right to good time but also specifies that it is to be forfeited only for serious misbehavior, the prisoner's interest has real substance and is sufficient to constitute a “liberty” interest within the Fourteenth Amendment entitling him to “those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.” (Wolff v. McDonnell, supra, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951.)

Those minimum requirements of procedural due process were held to be satisfied if (1) prisoners are provided advance written notice and a brief period of time (no less than 24 hours) to prepare; (2) prisoners are given the right to call witnesses and present documentary evidence, unless permitting them to do so is unduly hazardous to institutional safety or correctional goals; (3) illiterate prisoners or prisoners who, because of the complexity of the issues, are unable to prepare their case, are permitted to seek aid of a fellow inmate or staff; and (4) the prisoner is given a written statement by the fact finders as to the evidence relied on and the reasons for the disciplinary action.

In Meachum v. Fano (1976) 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451, the Supreme Court further delineated the scope of the due process right retained by a prisoner, this time in connection with changes in conditions of confinement. In Meachum, the court held that the Constitution does not require that a fact finding hearing be held in connection with the transfer between prison facilities within the State of Massachusetts, even though the transfer is to a less favorable maximum-security institution.

The court stated that, “(G)iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution. . . . The initial decision to assign the convict to a particular institution is not subject to audit under the Due Process Clause, although the degree of confinement in one prison may be quite different from that in another. The conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in Any of its prisons. . . . Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose.” (Meachum v. Fano, supra, 427 U.S. 215, 224-225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451, 459.)

The court noted that transfers between institutions are made for a variety of reasons and may involve no more than “informed predictions as to what would best serve institutional security or the safety and welfare of the inmate,” and that Massachusetts law had conferred no right on the prisoner to remain in the prison to which he was initially assigned. (Meachum v. Fano, supra, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451, 459.) Wolff was distinguished on the ground that there the state had provided a statutory right to good time credit to be forfeited only for serious misbehavior, whereas no proof of specific acts of misconduct were required under Massachusetts law as a condition of transfer within the prison system.

Although the court appeared to rely on the “state created right” concept in distinguishing Wolff, a careful reading of the opinion makes it quite clear that the court was also applying the accommodation or balancing principle set forth in Wolff. (See also Morrissey v. Brewer (1972) 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494-495.)

After again emphasizing that under Massachusetts law prison officials have the discretion to transfer prisoners for any number of reasons and are not limited to instances of misconduct, the court concluded, “As we understand it no legal interest or right of these respondents under Massachusetts law would have been violated by their transfer whether or not their misconduct had been proved in accordance with procedures that might be required by the Due Process Clause in other circumstances. Whatever expectation the prisoner may have in remaining at a particular prison so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all. (P) Holding that arrangements like this are within reach of the procedural protections of the Due Process Clause would place the Clause astride the day-to-day functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges. We decline to so interpret and apply the Due Process Clause. The federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.” (Meachum v. Fano, supra, 427 U.S. 215, 228-229, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451, 461.)

The lesson to be learned from these cases is that a prisoner retains a liberty interest under the Due Process Clause which protects him from arbitrary action by the prison administration. However, the nature of any hearing required to be had must be determined by balancing the prisoner's liberty interest and the state's correctional needs and objectives. (See also Greenholz v. Nebraska Penal Inmates (1979) —-U.S. ——, ——, 99 S.Ct. 2100, 2106-2107, 60 L.Ed.2d 668, 679.)

In Wolff, the law under which the prisoner was confined provided for the accrual of good time credits based upon good conduct and the fact of misconduct was the condition for the loss of such benefits. Under these circumstances the court held that a fact finding process was necessary to avoid arbitrary action by the prison administration. (Wolff v. McDonnell, supra, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935, 952.)

In Meachum, the law under which the prisoner was confined did not condition location of prisoners or their transfer from prison to prison upon the existence of any factual circumstance.2 Consequently, the court concluded that unlimited discretion to make transfer was necessary to the control and supervision of the prison system. (Meachum v. Fano, supra, 427 U.S. 215, 229, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451, 461-462.) Under such circumstances the transfer was deemed no more arbitrary than the initial confinement of the criminal defendant.

Unfortunately, the language used by the court in the two cases suggests that the liberty interest itself depends upon a statutorily created right. (See People v. Ramirez (1979) 25 Cal.3d 260, 266, 158 Cal.Rptr. 316, 599 P.2d 622; Meachum v. Fano, supra, 427 U.S. 215, 230, 96 S.Ct. 2532, 2541, 49 L.Ed.2d 451, 462 (dis. opn. of Stevens, J.).)

In People v. Ramirez, supra, 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622, the California Supreme Court criticized the federal emphasis on the necessity for a statutory limitation to protect the liberty interest on the ground that it “undervalues the important due process interest in recognizing the dignity and worth of the individual by treating him as an equal, fully participating and responsible member of society.” (Id., at p. 267, 158 Cal.Rptr. at p. 320, 599 P.2d at p. 626.)

In Ramirez, the California Supreme Court, in determining the applicability of the due process clauses of the California Constitution (Cal.Const., art. 1, s 7, subd. (a), Cal.Const., art. 1, s 15) to a patient-inmate at the California Rehabilitation Center in connection with exclusion proceedings, held that “the due process safeguards required for protection of an individual's statutory interests must be analyzed in the context of the principle that freedom from arbitrary adjudicative procedures is a substantive element of one's liberty.” (People v. Ramirez, supra, 25 Cal.3d 260, 268, 158 Cal.Rptr. 316, 320, 599 P.2d 622, 627.) The California Supreme Court has clearly articulated the principle that the procedural protections required to comply with due process depend upon a careful balancing of the governmental and private interests at stake.

Elaborating on this principle, the court stated: “In some instances this balancing may counsel formal hearing procedures that include the rights of confrontation and cross-examination, as well as a limited right to an attorney. (See, e. g., Morrissey v. Brewer, supra, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; In re Bye (1974) 12 Cal.3d 96, 115 Cal.Rptr. 382, 524 P.2d 854.) In others, due process may require only that the administrative agency comply with the statutory limitations on its authority. (See, e. g., Cafeteria Workers v. McElroy, supra, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230.) More specifically, identification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (People v. Ramirez, supra, 25 Cal.3d 260, 269, 158 Cal.Rptr. 316, 321, 599 P.2d 622, 627, 628.)

We have concluded that whether we apply the federal due process standard as applied by the United States Supreme Court or the due process standard of the California Constitution as more carefully articulated by the California Supreme Court, the result will be the same with respect to procedures required in connection with a change in inmate custody level under California law.3 Therefore, we must examine the facts to determine what procedural protections are warranted in light of the governmental and private interests.

The Facts

On January 28, 1977, officials at the California Institution for Women at Frontera (C.I.W.) received information from an unnamed source that a deadly weapon was buried on the prison grounds. At that time Westfall was a prisoner at C.I.W. and was editor of the prison newspaper, the Clarion. The Institutional Classification Committee (I.C.C.) had assigned her to that position after concluding that she had remained free of disciplinary action and was generally behaving in a positive manner. However, she was initially suspected by prison officials of having knowledge of the alleged buried weapon.

During the subsequent search of the prison grounds, a search of the Clarion office turned up an “escape kit” items of clothing (shoes, blouse, dress and pants), a traveling bag, and a purse later determined to belong to Westfall. A later search of her room uncovered a pocket knife and a marijuana cigarette. Westfall was temporarily placed in administrative segregation and her custody level was temporarily raised from medium to close pending a determination of her involvement. The weapon was never found. Although Westfall was initially charged with a disciplinary violation of possession of escape material, the charge was never processed and she was released from administrative segregation. However, she was informed that her custody had been raised to close.

At no time did inmate Westfall receive any written statement of reasons, no hearing was held, and she was given no opportunity to respond to any charges against her.

The classification process within the California Department of Corrections commences with Penal Code section 5068. The section provides in pertinent part as follows:

“The Director of Corrections shall cause each person committed to a state prison to be examined and studied. This includes the investigation of all pertinent circumstances of his life and the antecedents of the violation of law because of which he has been committed to prison. Any person may be reexamined to determine whether existing orders and dispositions should be modified or continued in force.

“Upon the basis of the examination and study, the Director of Corrections shall classify prisoners and determine the prison in which the prisoners shall be confined.”

Pursuant to the authority of Penal Code section 5058, the director has prescribed rules and regulations for the administration of the prisons, including a classification process set forth in the California Administrative Code, title 15, section 3370. Section 3370 requires all transfers and classifications to be made through the departmental classification procedures. The classification procedures are contained in the Inmate Classification Manual. Section 402 of the manual requires each institution Warden or Superintendent to submit an institution classification plan for approval of the Director and prescribes the elements to be included.

The C.I.W. classification plan provides in pertinent part as follows for close custody:

“3. CIW Main Campus:

“a. Close B

“4. This degree of custody is given to all inmates not well enough known to assign a lower custody classification or who may be described in one of the following categories:

“a. Recent escape or attempted escape.

“b. Aggressive or poor attitude demonstrated by overt behavior.

“c. Highly suggestible.

“d. Very immature personality.

“e. High anxiety or disturbed emotionally.

“f. Does not accept prison commitment.

“g. Length of sentence and/or seriousness of offense would indicate a time of adjustment at higher custody level.

“h. Documented behavior which is disruptive to the institution.”

Applying the Ramirez analysis, it is apparent that (1) inmate Westfall's reclassification to close security resulted in a substantial loss of liberty enjoyed by her under medium security classification with respect to work assignments, housing, programs and status;4 (2) the risk of erroneous deprivation of that interest through the procedures used was great, since she had no opportunity at all to respond to the reasons for her change of status (presumably for escape plans since no weapon was ever found); (3) the inmate's dignitary interest was completely disregarded; she was tried in absentia and was never informed of the reasons for the curtailment of her privileges; and (4) the governmental interest in denying the inmate a statement of reasons and a reasonable opportunity to be heard, once the weapons issue was resolved, was minuscule. No reason has been shown why the procedure set forth in section 3370 of title 15 of the Administrative Code was not followed in this case.

We conclude that the Department's action in this case was clearly arbitrary, and constitutes precisely the kind of action the due process clause protects against.

The People contend that reclassifications in California are not conditioned on specific acts of misconduct, but, like the transfer in Meachum “are made for a variety of reasons and often involve no more than informed predictions as to what would best serve institutional security or the safety and welfare of the inmate.” (Meachum v. Fano, supra, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451, 459.) Therefore, it is argued, since there is no right to any particular classification, no hearing is required. Alternatively, the People argue, since the decision to reclassify an inmate is evaluative in nature and based upon specialized subjective judgment rather than on the existence of particular facts, at the very most the procedures approved by the Supreme Court in People v. Ramirez, supra, 25 Cal.3d 260, 275, 158 Cal.Rptr. 316, 599 P.2d 622, are sufficient to satisfy an inmate's due process rights on reclassification to close security.

In Ramirez the court held that due process was satisfied, in a CRC exclusion proceeding by (1) affording the patient-inmate an opportunity to respond to the grounds for exclusion prior to the final exclusion decision, (2) giving the patient-inmate a statement of the grounds and access to the information considered by the Director in reaching his decision, (3) notice of the right to respond, (4) the right to respond orally if he chooses, and (5) giving the inmate a statement of the final decision and reasons therefor in writing.

The court concluded that, because the Director's decision is evaluative in nature and based on his specialized subjective judgment, rather than contestable facts, “more formal procedures than those previously identified would not reduce the likelihood of an erroneous determination, unless the individual challenging the decision could confront and cross-examine all the experts and persons who contributed information to his case history and to his psychiatric reports and criminal record. Even then, the marginal value to the individual would seem to be relatively insignificant because of the difficulties inherent in challenging the subjective aspects of an evaluative-type decision. Moreover, such extensive procedures would substantially impair administrative efficiency. Consequently we do not believe they are needed to protect the interests of the excluded CRC patient-inmate.” (People v. Ramirez, supra, 25 Cal.3d 260, 275-276, 158 Cal.Rptr. 316, 326, 599 P.2d 622, 632.) The People fail to convince us that reclassification to close security is comparable to exclusion from CRC.

Under the Inmate Classification Manual, a change of classification to close custody at C.I.W. is clearly conditioned upon the existence of certain objective facts.

Although it is arguable that the initial classification and assignment of an inmate to a particular level of custody may be a decision that is evaluative in nature and based on specialized judgment, rather than on the existence of particular and contestable facts, the same cannot be said of a change in classification. The classification plan provides for classification based upon the fact that the inmate falls within one of the enumerated categories. Once the inmate is sufficiently well known to be classified, and is classified, a change in classification if it is not to be arbitrary must be based upon some observable behavior that demonstrates either that an error was made in the initial identification and classification or that a change has occurred in the inmate's behavior. In either case the inmate has substantial interest in the accuracy of the information on which the determination is made. Affording the inmate an opportunity to appear and present evidence would not substantially impair administrative efficiency. To the contrary, the state's classification manual recognizes the desirability of such proceeding where the classification action would result in a substantially adverse alteration of an inmate's condition of confinement.5

Based upon the foregoing analysis, it is clear that the increase in the level of custody requires some kind of fact finding process to guard against arbitrary action. On the other hand, such hearings “are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” (Wolff v. McDonnell, supra, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951.)

It is evident that the trial court attempted to spell out a fair procedure to guard against the repetition of the arbitrary action that occurred in this case prior to the issuance of the writ. Unfortunately, when the courts are required by events to regulate the details of an administrative proceeding, there is a risk of going too far and imposing what the court deems fair rather than what the Constitution requires.

We take issue with the trial court only with respect to such details. Due process does not require 48 hours advance notice; it does require reasonable notice. The minimum 24-hour notice provided in the classification manual would satisfy this requirement under normal circumstances. (See Wolff v. McDonnell, supra, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935.) Due process does not require that every inmate be provided with a staff assistant to prepare her defense; it does require that illiterate persons or prisoners who, because of the complexity of the issues, are unable to prepare their case, be permitted to seek aid of a fellow inmate or staff. Due process does not require that inmates be given a right to cross-examine witnesses; the fact finding hearing is not an adversary proceeding. Due process does require that an inmate be allowed to be present and be permitted to call witnesses and present documentary evidence, unless permitting her to call witnesses and present documentary evidence would be unduly hazardous to institutional safety. Finally, the inmate is entitled to a statement of the final decision and the reasons therefor in writing. Due process does not require that the hearing committee make formal findings; it does require that the statement indicate the evidence relied on and the reasons.

The judgment is modified to provide the minimum requirements as herein set forth and affirmed as modified.

FOOTNOTES

1.  Specifically the court ordered that:“Close custody status may only be imposed on a resident of California Institution for Women after a fact-finding hearing:“1. A resident must receive written notice of the hearing at least forty-eight hours in advance. The notice must state what alleged behavior is relied upon to justify imposition of close custody with reference to the specific categories of California Institution for Women Policy Statement $ D-9. If the Hearing Panel intends to consider confidential information, the notice must indicate that fact. The notice must be sufficient to enable a resident to prepare a defense to its allegations;“2. A resident must be assigned a staff assistant, to enable her to present a defense. A resident may refuse staff assistance;“3. A resident should be allowed to call witnesses and confront adverse witnesses, unless permitting her to do so would be unduly hazardous to institutional safety. If permission to call witnesses or present evidence is denied, the resident must be notified of that denial at least twenty-four hours before the hearing. The reasons for denial must be documented and a copy given to the inmate;“4. A resident must be present at the hearing, be allowed to speak on her own behalf, and to present documentary evidence. A resident may refuse to attend;“5. The hearing must be conducted by an impartial panel;“6. A resident must be given a written statement indicating the findings of the Hearing Panel, the evidence relied on, and the disposition within forty-eight hours of the hearing. If confidential information was considered by the Panel, that fact must be indicated in the written statement.”

2.  At the time of the transfer, Massachusetts General Laws annotated, chapter 127, section 97 (1974) provided as follows:“s 97. Transfers from and to correctional institutions; approval“The commissioner may transfer any sentenced prisoner from one correctional institution of the commonwealth to another, and with the approval of the sheriff of the county from any such institution except a prisoner serving a life sentence to any jail or house of correction, or a sentenced prisoner from any jail or house of correction to any such institution except the state prison, or from any jail or house of correction to any other jail or house of correction. Prisoners so removed shall be subject to the terms of their original sentences and to the provisions of law governing parole from the correctional institutions of the commonwealth.”

3.  Although the California Supreme Court in In re Davis (1979) 25 Cal.3d 384, 390, 158 Cal.Rptr. 384, 388, 599 P.2d 690, 695, uses the language of Wolff and Meachum, stating that California has “created a liberty interest by the Rules,” in determining that a hearing is required for disciplinary segregation, we do not understand that the California Supreme Court has abandoned the principle of Ramirez. Ramirez is not mentioned in In re Davis.

4.  The regulations recognize the importance of the classification process by providing that whenever possible the inmate is to be given advance written notice and an opportunity to be present and to be heard on reclassification. (Title 15, Adm.Code, s 3370, subds. (c) and (d).)

5.  California Department of Corrections Classification Manual, chapter 300, article 2, section 306 provides as follows:“Fairness Procedures. Classification actions that result in a substantially adverse alteration of an inmate's condition of confinement will require the following procedures:“(a) Written notice of the proposed action and the reasons for it will be given to the inmate at least 24 hours before the classification hearing when it is known in advance that the proposal is for an action which is adverse to the inmate.“(b) A delay of at least 24 hours in the classification hearing will be granted upon the inmate's request when an anticipated adverse classification action is proposed in the course of a classification hearing. The inmate will be given the required written statement and 24-hour notice.“(c) When the classification committee determines that an inmate is unable to prepare a defense against the proposed action, or the situation is complex, the matter will be referred to the inmate's caseworker or to an investigating officer for assistance.“(d) Emergency lockups and transfers will not require advance notice but inmates must have full opportunity to present their side at the classification meeting following the action. The reasons for the emergency action will be given to the inmate in writing as soon as possible After the action was taken and Before his or her appearance at the hearing.“(e) The inmate may give up his or her right to 24-hour notice. Such a waiver will be documented.”

MORRIS, Associate Justice.

GARDNER, P. J., and McDANIEL, J., concur.