No. 95-045 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

ANTHEL L. BROWN and 

DEWEY E. COLEMAN, 

Petitioners & Appellants, 

v. 

HONORABLE TED MIZNER, District 

Judge of the Third Judicial 

District of the State of Montana, 

Powell County, 

Respondent & Respondent. 

SEP 07 19% 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Ted Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anthel L. Brown and Dewey E. Coleman, Deer Lodge, 

Montana (pro Se) 

For Respondent: 

David L. Ohler, Department of Corrections, Helena, 

Montana 

Filed: 

Submitted on Briefs: August 3, 1995 

Decided: September 7, 1995 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

This is an appeal from an order and opinion in the Third 

Judicial District Court, Powell County, denying Anthel L. Brown and 

Dewey E. Coleman's petition for additional good-time credits for 

unit work done prior to July 1982 and denying petitioners' 

application for habeas corpus. 

We affirm. 

We consider the following issues on appeal: 

1. Did the District Court abuse its discretion in denying 

petitioners' additional good time for work done prior to July 1982? 

2. Are petitioners entitled to a writ of habeas corpus based 

on the Department of Correction's denial of the petitioners' 

liberty interest in good-time credits for work done prior 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 a U.S. District Court's decision. 

In that case, the court ruled that § 53-30-105, MCA, created a 

protected liberty interest. An interest that ensured the receipt 

of good time while an inmate was employed by the Montana State 

Prison. The decision has since been appealed by the Department, 

and the Ninth Circuit Court reversed and remanded. Lattin v. 

McCormick (9th Cir. 1995), 46 F.3d 1142. 

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1n the meantime, a number of hearings concerning the awarding 

of additional good time for employment were held in 1993. Basing 

his decision on a recent Montana Supreme Court case, Judge Robert 

BOYd I 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 on the 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 had been 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 a decision 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 

3 
administrative 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 

5 53-40-105(l), MCA. There was no set 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 who participated 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 

5 53-30-105(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 a policy 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 

4 
to 1992, but after July 1982. The basis of petitioners' argument 

is that if employment is now considered when determining good time 

based on the educational value, then employment should always have 

been considered when determining good time. 

The petitioners are seeking to expand subsection (d) of 

5 53-30-105, MCA, concerning education to include employment prior 

to 1982: 

53-30-105. Good time allowance. (1) The department 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 and to 

implement subsection (5). The good time allowance shall 

operate as a credit on the inmate's sentence as imposed 

by the court, conditioned upon the inmate's good behavior 

and compliance with the rules made by the department or 

the warden. The rules adopted by the department under 

this subsection may not grant good time allowance to 

exceed: 

id; . 13 . days per month for those inmates enrolled in 

school who successfully 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 

5 53-30-132, MCA. 

we hold that the District Court did not abuse its discretion 

in denying petitioners additional good-time credit for work done 

prior to July 1982. 
ISSUE 2 

Are petitioners entitled to a writ of habeas corpus based on 

the Department of Correction's denial of the petitioners' liberty 

interest in good-time credits for work done prior to July 1982? 

A liberty interest may be created by state statute if there 

are substantive regulations on the exercise of official discretion. 

Baumann v. Arizona Dept. of Corrections (9th Cir. 1985), 754 F.2d 

841. In this case, the petitioners argue their liberty interest 

lies in the Department's obligation to adopt rules for the granting 

of good time for inmates employed in "any" prison work or activity 

under 5 53-30-105, MCA. 

This Court recently looked at the issue of liberty interests 

in relation to good time. Reminqton, 844 P.2d 50. In that case, 

an inmate argued he had a liberty interest in good time based on 

his participation in a correspondence course. The Court, in its 

holding, found the Department had "virtually unfettered discretion" 

in establishing the rules that govern the application of good time. 

Reminqton, 844 P.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, 844 P.2d at 

52. Accordingly, the inmates have no liberty interest in the 

rules. The petitioners' extension of a liberty interest in the 

Department's obligation to adopt rules for the granting of good 

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time 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 3 cc), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

Justice 

We Concur: