ATTORNEY FOR APPELLANTATTORNEYS FOR APPELLEE

William K. Zimmerman, pro seJeffrey A. ModisettAttorney General of Indiana

AMICUS CURIAE

E. Paige FreitagJon Laramore

Kenneth J. FalkDeputy Attorney General

Indiana Civil Liberties UnionIndianapolis, Indiana

Indianapolis, Indiana

**In The**

**INDIANA SUPREME COURT**

)

WILLIAM K. ZIMMERMAN)Supreme Court No.

Plaintiff-Appellant,)77S01-0008-CV-00478

)

v.)Court of Appeals No.

)77A01-9909-CV-318

STATE OF INDIANA, EDWARD L. )

COHN, BRUCE LEMMON,)

Defendant-Appellee.)

)

________________________________________________

APPEAL FROM THE SULLIVAN CIRCUIT COURT

The Honorable P.J. Pierson, Judge

Cause No. 77C01-9907-CP-213

________________________________________________

On Petition To Transfer

June 27, 2001

DICKSON, Justice

William K. Zimmerman, an inmate at the Wabash Valley Correctional Facility, tested positive for cannabinoids, in violation of prison rules against possessing or using controlled substances.  As part of his penalty for this violation, his visitation privileges were restricted to non-contact visits for six months.  Zimmerman filed an action in the trial court seeking to compel the State of Indiana Department of Correction; Edward Cohn, the Commissioner of the Indiana Department of Correction; and Bruce Lemmon, the Superintendent of Wabash Valley Correctional Facility, to cease imposing this restriction upon his prisoner visitation privileges.  The trial court dismissed Zimmerman's complaint, in part concluding that it lacked jurisdiction because "there is no statutory or constitutional right to judicial review of prison administrative disciplinary actions."  Record at 23.  The Court of Appeals reversed.  Zimmerman v. State, 727 N.E.2d 714 (Ind. Ct. App. 2000).  We granted the defendants' petition to transfer.  Pursuant to our grant of transfer, Zimmerman's appeal is before this Court as if originally filed herein.  Ind.Appellate Rule 11(B)(3).  

Zimmerman asserts that his mandate action is authorized by Indiana Code § 34-27-3-1 which provides, "An action for mandate may be prosecuted against any . . . public . . . officer, or person to compel the performance of any:  (1) act that the law specifically requires; or (2) duty resulting from any office, trust, or station."  He seeks an order directing the defendants to comply with Indiana Code § 11-11-5-4(4), which states "The department [of correction] may not impose the following as disciplinary action:  . . . (4) Restrictions on clothing, bedding, mail, visitation, reading and writing materials, or the use of hygienic facilities, except for abuse of these. . . ."  Ind.Code § 11-11-5-4.  The State argues that Zimmerman may not obtain through a request for mandamus the exact same relief—judicial review of prison disciplinary action—prohibited by Hasty v. Broglin, 531 N.E.2d 200 (Ind. 1989).    

In Hasty, this Court declared:

Neither Indiana statutes nor common law rules establish Hasty's right to judicial review of prison disciplinary action.  Absent statutory authorization, Indiana courts have declined to review a decision of a penal institution to take away an inmate's good-time credit for a prison infraction.  Riner [v. Raines], 274 Ind.[113], 115, 409 N.E.2d [575], 577 [(1980)] .  The current system of administrative review by policy makers and executive officers within the correction department establishes a fair procedure to resolve disputes, one adequate under due process.  

Hasty, 531 N.E.2d at 201.  In Riner, we expressly held that there is "no constitutionally protected right to judicial review of the decisions of fact-finding and appellate tribunals presently conducting disciplinary proceedings within the prison system." 274 Ind. at 118-19, 409 N.E.2d at 579.  

In the eleven years since Hasty, the Indiana General Assembly has not enacted any statutory authorization providing for the judicial review of a disciplinary decision of a penal institution.  Regardless of the procedural vehicle employed—whether mandate to compel compliance with statute or direct judicial review of a prison disciplinary decision—Zimmerman is seeking judicial intervention in the disciplinary actions of the Department of Correction.  We decline to retreat from the principles and policies reflected in Hasty and Riner.  The relief sought is not available in Indiana courts. 

We affirm the trial court.  

SHEPARD, C.J., and SULLIVAN, J., concur.  BOEHM, J., concurs in result with separate opinion.  RUCKER, J., concurs in result with separate opinion.  

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

William K. Zimmerman, Pro Se Karen Freeman-Wilson

Carlisle, Indiana  Attorney General of Indiana

AMICUS CURIAEJon Laramore

E. Paige FreitagDeputy Attorney General

Kenneth J. FalkIndianapolis, Indiana

Indiana Civil Liberties Union

Indianapolis, Indiana

__________________________________________________________________

# IN THE

# SUPREME COURT OF INDIANA   

__________________________________________________________________

WILLIAM K. ZIMMERMAN,)

)

Appellant (Plaintiff Below),)Indiana Supreme Court

)Cause No. 77S01-0008-CV-478

v.)

)Indiana Court of Appeals 

STATE OF INDIANA, et al.,)Cause No. 77A01-9909-CV-318

)

Appellees (Defendants Below).)

__________________________________________________________________

APPEAL FROM THE SULLIVAN CIRCUIT COURT

The Honorable P. J. Pierson, Judge

Cause No. 77C01-9907-CP-213

__________________________________________________________________

## ON PETITION FOR TRANSFER

**__________________________________________________________________**

June 27, 2001

BOEHM, Justice, concurring in result.

I agree with the majority that the trial court correctly dismissed Zimmerman’s mandamus action.  I reach that conclusion mainly because Zimmerman did not preserve what seem to me to be the interesting questions raised by these facts.  Zimmerman made no claim that Indiana Code section 11-11-5-4 grants him a statutory right which is protected by Article I, Section 12’s open courts clause.  

We are left, then, with two open questions for another day.  First, does Indiana Code section 11-11-5-4, which prohibits the Department of Corrections from imposing certain disciplinary actions, create a statutory right?  If so, does Article I, Section 12 of the Indiana Constitution guarantee inmates a right to judicial review of disciplinary proceedings allegedly in violation of that statute?  

Indiana Code section 11-11-5-4 provides that “The department [of corrections] may not impose the following as disciplinary action: . . . (4) Restrictions on clothing, bedding, mail, visitation, reading and writing materials, or the use of hygienic facilities, except for abuse of these. . . .”  This statute effectively carves out a category of inmate privileges that may not be revoked through disciplinary proceedings.  If the legislature has given inmates a statutory right, albeit a right subject to a number of restrictions, this case presents an issue not raised by Hasty v. Braglin 531 N.E.2d 200 (Ind. 1989).  The inmate in Hasty was docked good time following an administrative hearing, a process contemplated by the sentencing structure of the Indiana Criminal Code.  Ind. Code § 35-50-6-5 (1998).  Hasty noted that “[n]either Indiana statutes nor common law rules establish Hasty’s right to judicial review of prison disciplinary action.  Absent statutory authorization, Indiana courts have declined to review a decision of a penal institution to take away an inmate’s good-time credit for a prison infraction.”  Id. at 201.  The Hasty holding, however, does not address whether Zimmerman has recourse to the state courts to address an alleged violation of a right conferred by statute.

Hasty also did not address the potential application of Article I, Section 12 of the Indiana Constitution.  That section provides, “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.”  Although there is no case law in Indiana directly on this point, in the view of some, an open courts clause of this sort “promises that for injuries recognized elsewhere in the law, the courts will be open for meaningful redress.”  Jennifer Friesen, State Constitutional Law § 6-2(c) (2d ed. 1996).  The implications of this constitutional provision for an inmate’s claim of violation of a statutory right remain unaddressed by this Court.

APPELLANT PRO SE:ATTORNEYS FOR APPELLEE:

**WILLIAM K. ZIMMERMAN****KAREN M. FREEMAN-WILSON**

Carlisle, IndianaAttorney General of Indiana

##### ATTORNEYS FOR JON LARAMORE

AMICUS CURIAEDeputy Attorney General

Indianapolis, Indiana

# E. PAIGE FREITAG

# KENNETH J. FALK

Indiana Civil Liberties Union

Indianapolis, Indiana

### IN THE

**SUPREME COURT OF INDIANA**

WILLIAM K. ZIMMERMAN,)

)

Appellant-Plaintiff,)Supreme Court Cause Number

)77S01-0008-CV-478

v.)

)Court of Appeals Cause Number

STATE OF INDIANA, EDWARD L. COHN,)77A01-9909-CV-318

BRUCE LEMMON,)

)

Appellees-Defendants.)

APPEAL FROM THE SULLIVAN CIRCUIT COURT 

The Honorable P.J. Pierson, Judge

Cause No.  77C01-9907-CP-213

**ON PETITION TO TRANSFER**

## June 27, 2001

RUCKER, Justice, concurring in result

In Hasty v. Broglin, 531 N.E.2d 200 (Ind. 1989), this Court reiterated “there is no constitutionally protected right to judicial review of individual decisions of the prison disciplinary system.”  Id. at 201 (citing Riner v. Raines, 274 Ind. 113, 409 N.E.2d 575 (1980)).  This Court offered the following explanation for such a policy, “The current system of administrative review by policy makers and executive officers within the correction department establishes a fair procedure to resolve disputes, one adequate under due process.” Id.  Although the current system may be adequate under federal due process standards, I do not believe that it is adequate under the Open Courts provision of the Indiana Constitution.  SeeMcIntosh v. Melroe Co., a Div. of Clark Equip. Co., Inc., 729 N.E.2d 972, 975 (Ind. 2000) (holding that the Open Courts provision of the Indiana Constitution is not equivalent to the Due Process Clause of the United States Constitution) 

Article 1, Section 12 of the Indiana Constitution provides in part, “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.”  We held in Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), that the Open Courts provision provides “a right of access to the courts.”  Id. at 1283. Although this right is not unlimited, seeid., I believe that a blanket prohibition of judicial review of disciplinary decisions of penal institutions certainly runs afoul of this provision.

Nonetheless, I agree with the majority that Zimmerman is not entitled to relief.  Mandate is an extraordinary remedy viewed with extreme disfavor.  State ex rel. Civil City of South Bend v. Court of Appeals of Indiana-Third Dist., 273 Ind. 551, 406 N.E.2d 244, 245 (1980).  A defendant must have failed to perform a clear, absolute, and imperative duty imposed by law, and a plaintiff must have a clear and unquestioned right to relief.  Id. at 246; State ex rel. Drost v. Newton Superior Court, 275 Ind. 297, 416 N.E.2d 1247, 1250 (1981).  According to Indiana Code section 11-11-5-4(4), if the controlled substance that Zimmerman tested positive for came from outside the prison, then the Department of Correction was warranted in restricting his visitation.  Because of the factual nature of such an inquiry, it cannot be said that Zimmerman has a clear and unquestioned right to relief.  For the foregoing reasons I agree with the result reached by the majority, namely, the judgment of the trial court should be affirmed.

� New Ind.Appellate Rule 58(A).

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