liberty interest is created by a washington statutory scheme that has been repeatedly interpreted as requiring at least minimal due process when i draw the court's attention to two provisions of the relevant provisions of the washington code the confinement in addition to a term of community placement and that term shall be three years or up until the period of earned early release credits that are awarded under section seven twenty eight whichever is longer now section seven twenty eight is the provision which governs earned early release there are two aspects of this provision the first aspect is to the general provision that applies to prisoners who did not have community placement sentences and it provides that th ose prisoners may have their sentences reduced by good time credits good performance credits the second part of this provision says that prisoners such as mr mr carver who have a community placement  requirement may earn early release or maybe eligible for early release into the community custody in lieu of their own worded good time good performance credits now the first part of the statute there's actually no discretion in the statute you are in the set it's your released the second part of the statute section seven twenty eight does have some discretion in it but that is that discretion is not unfettered it provides that the offender ask you could use a release paint release plan and then that release plan is evaluated by the d o t and mr layman for certain conditions and basically they're verifying that the release plan of the release address but under the new rules who knows that cheney was just a layman one that was decided on march twenty second held and there are a number of washington cases that are district court cases cases held up that no federal liberty interest has been created because the d l c has discretion what's your response to that  that discretion doesn't mean that a liberty interest cannot be created and that's most apparent in green holds itself because green holds was a case where the pro board in that case had considerable discretion in similar criteria for whether or not to grant parole and nonetheless the court in green hopes acknowledge that a federal liberty interest was created by that state scheme in addition you have here or washington courts that have been trumpeted the early release provision as creating a liberty interest in not not just the good time credits from a doctor actually talking about earlier cases that occurred prior to the case here and in particular in re anderson which is a supreme court washington supreme court case and which is a washington court of appeals case anderson dealt with the first part of the statute and said there is a liberty interest if you take away a good time credits now crowder don't precisely with the second part of the statute which is early release to community custody crowder like mr carver was a sex offender and was subject to community placement term and he argued that a liberty interest was created by that statute the court agreed it found in the case that the due process provided was was agree that that's probably not the best practice but in reality i think you can read cheney as not holding that as it's really resting on this different analysis of whether or not you process with violated but in addition the opinion in cheney does not consider the mandatory language of section seven ten and it is slowly looking at section seven twenty eight it also doesn't consider how the washington courts have parsed the some of the permissive language in section seven twenty eight and they found that that permissive language means that there is no liberty interest in earning good time credits but there is a liberty interest in having been taken away and that's what happened in this case where now started mention in ray crowder this case was directly on point with respect to whether or not a liberty interest was created and so we submitted it was a clearly established interest crowder's the facts of credit was somewhat different in that  the defendant in that case was the court found there was due process provided because the plan was investigated and rejected for a legitimate reason we have in this case is happening was not that these these prisoners were immediately being referred for civil commitment they actually would hold the referral right up into the maximum release state refer them at that point and so you affected leigh have no opportunity even to get a terminations on the civil commitment until after the earned release credits are taken away is it your position nine point one four eighty seven twenty eight i guess it's to  that's true of the department made in the transcript in the status to your position that even though there is a lot of discretion there that by virtue of the way this is written that if all of big negative programme concept it's certainly different indistinguishable from some of the cases that talk about language where you may grant parole and do not put do not list the circumstances under reassess and then deny the plan anyways because mr carver had been referred for civil commitment commitment referrals was improper and it found not just under the washington statute that you see it failed to follow the washington statute it found that there was a liberty interest and regardless of whether or not the d they didn't consider the criteria they just found he was a civil case civil referral case and therefore he was out of the system and we would argue that due process at minimum requires that you make a decision on the merits and go through the statutory criteria and not reject a plan for a ground that's not in the statute sort of like you're saying the dutch are really covered your case you don't really need our help in that other than to say the guy didn't get the doctor right well we  unfortunately she failed to mention in the primary provision of that statute which is mandatory language that says washington law requires that do you see keep offenders in confinement until the expiration of the sentence that language is mandatory language the released it's premise of language not mandatory language which distinguishes it from the court's rulings in green holds and alan where they were considering statutes that required that a pro board released someone when they had reached their date and less specific criteria were made were met that with that required that that person remain in confinement no portion of nine for a seven to eight creates a legitimate expectation that an inmate will be released on their an long as it's inside any of the four sub parts if none of those top parts are there in fact the negative program is that they must grant really i would say that's you know accurate reading of the statute there are specific criteria that are outlined in some paragraph d so paragraph c also gives the department of corrections the authority to draft a policy governing how a release plan is submitted and what is considered in grants or denying subsections i got a portion of seventeen here but does not talk about he said i think there are two other reasons why they must deny and i apologize i don't have seven ten in front of me but my recollection of what seven ten says is if a person is is at a certain substantial likelihood to reoffend they cannot be released and i can't remember what the second one is off the top of my head but i can certainly provide that information should also show your you're representing t did not address the fourteenth amendment it conducted no analysis of the liberty interest it simply stated based on previous court rulings in the state of washington that a limited liberty interest had been created at some point in the past and follow that line of thinking and again it created a procedure that the department of corrections needed to follow in established that mr dr had the right to that procedure it did not establish that he had a fourteenth amendment right the fourteenth amendment liberty interest no i mean really  policy which dictates how the procedure will work and how the offenders can apply for release to address and how the department will consider that in compliance with that they drafted a policy and part of that policy contained the language that if you are being if you are considered eligible for civil commitment referral your plan will not be considered and that was the status of the policy and the law at the time that mr carver submitted his release address and his release address was therefore denied he was informed of that a month later and then eight months later the court issued its ruling and after informing the department of corrections that that exercise of discretion was inappropriate at the time of mr carver submission the status of the law and the status of the policy allow the department to do that when it was challenge to change job immunity when you articulate from the perspective of the state why you believe mr layman under the circumstances we postulated here is entitle to qualif and the department of corrections interpretation of the policy as they were permitted to do by the legislature said that this was an appropriate reason for denying a release plan that changed but it didn't change until eight months after mr carver it's released and i think situation such that mr layman being i'm sure the intelligent person that he is he could not have divined what the law really was is not an accurate statement i think that is an accurate statement in the reason why i think that's an accurate statement is because we look to what's happened recently and we do have the decision from the cheney court and even the cheney court articulated that this is not a clearly established area of the law if it's not a clearly established area of the law in the opinion of ninth circuit justices immunity ok any again i want to get back to a for a moment to the liberty interest issue because you've asked me to assume argue when you know that there is a state created liberty interest and it is clearly state's position that there is not unlimited liberty interest in th a board shall release an offender if they don't meet these criteria washington simply doesn't have that we actually have the opposite we have a statute that says you shall not release somebody that you main your discretion establish a program for releasing somebody if they mee some criteria that are established both in the statute and in the policy to grant an extreme amount or a significant amount of district just question to the department of corrections to make that ruling and that's what was done in this case and unfortunately we found out eight months later or fortunately we found out eight one for a seven to eight paragraph to places the onus on the offender to submit a release plan to the department and mr carver simply did not do that he was notified a month after he submitted his original address in march of two thousand and two that his address was being denied he was notified of the basis for that denial that the policy said because you're going to be civilly committed we're not going to consider your plan at any time that the policy was then amended when the jet your decision came out that policy was published to all dispute that because he did know enough to look at the policy the first time to generate a plan and he didn't know enough about dutch or to file this table action where he cited debtor extensively in his complaint so at some point he learned or he was capable as the placing a sex offender in the same address and same address as the victim we per we think it's these are also part of the discretion of the u s c to deny release plans also not grounds for denying mr carver's release that gave discretion to the d n c to deny mr carver's plan which were not used and not applied in this case but the bottom line is that that means that the universe of seven twenty eight is not the entire there's some other parts that are not included there she can't really go negative pregnant on seven twenty eight right well i think reading the statutory scheme together you can then there is mandatory language in now mixing my number seven ten or seven twenty which i refer to initially which talk in mandatory terms talks about how to sentence the term a sentence for community placement in minutes or language which says you shall be sentenced to a term which includes this term of earned release time that you earned as part of section seven twenty eight so it's not entirely just permissive and you have to read these provisions together to determine whether or not there is a state created right moreover  state supreme court and appellate court decisions which find that there is such or such a right created in green holds the court specifically notes how useful it would have been if the nebraska courts in those cases had ruled on and  created liberty interest defying forest if you will counsel what that state created liberty interest gives to mr carter what what rights if any does that give to him other than the procedure that was mentioned by your opposing counsel who think the liberty interest is the interest in being released to community custody you know the procedural rights as a result of that follower at least having a decision on the merits and at least having the station that is sites a legitimate reason that's provided for  agree those are procedural but though that is the due process that's required because there's a substance of liberty interest so you're saying that the right is to not only have a hearing but to have a disposition and reasons given for the disposition essentially or i mean what we have here is just a non disposition refusal to decide on the merits that are provided for in the statute is your contention the dutch are actually takes care of this stuff that i mean if dutch or had been on the books before mr harbors procedure began is it your view that the d l c would have been required to do what you're looking for here we believe so and in fact i think that's indicated b investigation that was done where the investigation found that the release address provided by mr carver did not put him in a risk of re offending which is one of the primary criteria under the statutory provisions and the relevan commitment determination so you have essentially opposite findings where on the one hand the d s e is saying well he made the meet the definition for civil commitment which involves a risk of the offending but then finding his release address does not put him at a risk of an offense are we in a situation here where you have the state of washington it's courts have construed state law and determine that there is a state liberty interest if you take away the federal component that you're arguing for is this something where we ought not to be involved which is something where washington really has its own answer that no federal  substantive due process or liberty interest need be involved but i submit that the liberty interest identified by the state courts is a federal due process interest from your perspective if there's a state created liberty interest here there's a federal one too and you want that declared yes date in two thousand and three he was tried finally last september he was declared not to meet the standard for civil commitment there's a mistrial found and that is currently under review so he is still do not believe there is an appeal that he is pursuing connection with the trial proceeding