No. 95-045 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1995

ANTHELL. BROWN

and DEWEYE. COLEMAN,

Petitioners &Appellants,
v. HONORABLE

TEDMIZNER, District Judge of the Third Judicial District of the State of Montana, Powell County,

Respondent &Respondent. 

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APPEALFROM: District Court of the Third Judicial District,

In andfor the County of Powell, TheHonorable TedMizner, Judge presiding.

COUNSELOFRECORD:

For Appellant: Anthel L. Brown andDeweyE. Coleman, Deer Lodge, Montana (pro Se) For Respondent: David L. Ohler, Department of Corrections, Helena, Montana

Filed: Submitted onBriefs: August 3, 1995 Decided: September 7, 1995Justice William E. Hunt, Sr., delivered the Opinion of the Court.

This is an appeal from anorder and opinion in the Third Judicial District Court, Powell County, denying Anthel L. Brownand DeweyE. Coleman's petition for additional good-time credits for unit work done prior to July 1982 and denying petitioners' application for habeas corpus. Weaffirm. Weconsider the following issues onappeal: 1. Did the District Court abuse its discretion in denying petitioners' additional goodtime for workdoneprior to July 1982? 2. Arepetitioners entitled toawrit of habeascorpus based
on the Department of Correction's denial of the petitioners' liberty interest in good-time credits for work doneprior to July 1982?This appeal comes to the Court following a disjointed procedural history involving different petitioners. Several inmates at the Montana State Prison filed writs of habeas corpus in the Third Judicial District Court seeking retroactive application of good-time credits in light of aU.S. District Court's decision. In that case, the court ruled that §53-30-105, MCA, created a protected liberty interest. Aninterest that ensured the receipt of good time while an inmate was employed by the Montana State Prison. Thedecision hassince beenappealed by the Department, and the Ninth Circuit Court reversed and remanded. Lattin v. McCormick (9th Cir. 1995), 46F.3d 1142.

21nthe meantime, anumber of hearings concerning the awarding

of additional good time for employment were held in 1993. Basing his decision on arecent Montana Supreme Court case, Judge Robert BOYdI ruled the award of good-time credit was a discretionary determination, and therefore, denied the inmates' petition for writs of habeas corpus. Remington v. Dept. of Corrections (1992), 255 Mont. 480, 844 P.2d 50. The inmates then appealed to the Supreme Court. Arledge, et al. v. McCormick (1993), 257 Mont. 543, 857 P.2d 738. This Court found for the petitioners onthe grounds that the Department of Corrections failed to adopt rules and provide the petitioners with the appropriate good-time credits. The Department filed a motion for rehearing showing that the petitioners hadbeen provided with good-time credits for their employment as unit workers under
a recent administrative decision. On July 1, 1993, this Court granted the motion for rehearing and ordered a full and complete record upon which adecision could be made. The order denied the petitioners' writ of mandamus and directed future petitions concerning good-time credits under §53-30-105, MCA, to be filed with the Third Judicial District Court in order to ensure a full and complete record. In March 1994, petitioners refiled their petition in the Third Judicial District. Before the hearing in this case, several motions were filed concerning the Department's failure to calculate and provide the additional good-time credits for petitioners. Also, as mentioned earlier, the Department made an important
3administrative decision to award all inmates, regardless of the

status of their employment, good-time credit for work done after July 1982. The petitioners received this additional credit. This left only the question of good-time credits for work done before July 1982. ISSUE 1 Did the District Court abuse its discretion in denying petitioners additional good time for work done prior to July 1982? Prior to 1982, the Montana State Prison allotted good-time credit based on custody classifications as provided in 553-40-105(l), MCA. There wasnoset departmental policy; inmates
were granted good-time credits ranging from 10 to 15 days per month. In July 1982, the Legislature added a second provision concerning good time with regard to employment, §53-30-132, MCA. Based on this statute, the Department adopted a written policy entitling inmates whoparticipated in specific on-the-job training
or vocational work programs to receive 13 days per month of good-time credits, in addition to credit allowable under 553-30-105(a) - (c), MCA. Prison Inmate Good-time Policv NO. 505, October 1, 1982. At this time, petitioners did not qualify under this provision for the extra credits because of their job status as unit workers. Then, in 1992, the Department adopted apolicy allowing the Department to consider all employment when determining good time because of the inherent educational value. Accordingly, petitioners have received retroactive good time for work done prior
4to 1992, but after July 1982. Thebasis of petitioners' argument

is that if employment is nowconsidered whendetermining goodtime based onthe educational value, then employment should always have been considered whendetermining goodtime. The petitioners are seeking to expand subsection (d) of 553-30-105, MCA,concerning education to include employment prior to 1982: 53-30-105. Goodtime allowance. (1) Thedepartment of corrections and human services shall adopt rules providing for the granting of good time allowance for inmates employed in any prison work or activity andto implement subsection (5). Thegoodtime allowance shall operate asacredit onthe inmate's sentence as imposed bythe court, conditioned uponthe inmate's goodbehavior andcompliance with the rules madebythe department or the warden. The rules adopted by the department under this subsection maynot grant good time allowance to exceed: id;

. . 13dayspermonthfor those inmates enrolled in school whosuccessfully complete the course of study or who while so enrolled are released from prison by discharge or parole

. . . However, the plain language of the statute does not provide for, let alone mandate, the award of additional good-time credits based upon employment. The District Court found the Department's discretionary authority for the similar treatment of work and educational pursuits became possible only after the passage of 553-30-132, MCA.
wehold that the District Court did not abuse its discretion in denying petitioners additional good-time credit for work done prior to July 1982.ISSUE2

Are petitioners entitled to awrit of habeas corpus based on the Department of Correction's denial of the petitioners' liberty interest in good-time credits for work doneprior to July 1982? Aliberty interest maybecreated by state statute if there
aresubstantive regulations onthe exercise of official discretion. Baumannv. Arizona Dept. of Corrections (9th Cir. 1985), 754F.2d 841. In this case, the petitioners argue their liberty interest lies in the Department's obligation to adopt rules for the granting of goodtime for inmates employed in "any" prison work or activity under 553-30-105, MCA. This Court recently looked at the issue of liberty interests in relation to goodtime. Reminqton, 844P.2d 50. In that case, aninmate argued hehadaliberty interest in good time based on his participation in acorrespondence course. TheCourt, in its holding, found the Department had"virtually unfettered discretion" in establishing the rules that govern the application of goodtime. Reminqton, 844P.2d at 52. Since the Department's grant of authority is entirely permissive; there is no liberty interest created through the substantial statutory regulation of the Department's official discretion. The statute contains no mandated "shallstl for the rules it directs the Department to make. Reminqton, 844P.2d at 52. Accordingly, the inmates have no liberty interest in the rules. Thepetitioners' extension of aliberty interest in the Department's obligation to adopt rules for the granting of good
6time would be inconsistent with the logic of the Reminqton

decision. Therefore, we hold that a writ of habeas corpus is inappropriate because the inmates do not have an unconstitutional restraint on their freedom due to the Department's denial of good-time credit. Remington, 044 P.2d at 53. Petitioners' application for a writ of habeas corpus is denied.Pursuant to Section I, Paragraph 3cc), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not becited as precedent and shall bepublished by its filing asapublic document with the Clerk of the Supreme Court and by a report of its result to Montana LawWeek, State Reporter and West Publishing Company.

Justice WeConcur: