IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON HENRY GRISBY Respondent,

v. ROBERT HERZOG, Superintendent, Monroe Correction Complex, BERNARD 

### WARNER, Secretary, Departmentof Corrections. Appellants. No. 71904-1-1 DIVISION ONE

PUBLISHED OPINION FILED: October 26, 2015



### Becker, J. —The procedural protection due to an individual who faces revocation ofcommunity custody status includes, insome cases, the right to be represented bycounsel at the revocation hearing. Whether counsel is 

### appropriate in a particular case is up to the discretion of the hearing authority. 

### We disagree with a previous Court of Appeals opinionallowing the Department of Corrections to exclude counsel from all such hearings. FACTS 

### Respondent Henry Grisby was convicted in2010 for delivering cocaine. The standard sentencing range for his offense would have been 60 to 120 months. Instead, the court imposed a prison-based special drug offender alternative sentence of45 months of confinement and 45 months ofcommunityNo. 71904-1-1/2 

### custody. See RCW 9.94A.660(3); RCW 9.94A.662. The sentence included, as required by the statute, a condition that Grisby not use illegal controlled substances and a condition requiring him to submitto urinalysis. RCW 9.94A.662(1). 

### In January 2013, having completed 45 months in confinement, Grisby was released into community custody. In that new status, he continued to be 

### supervised by the Departmentof Corrections. See RCW 9.94A.704(1). The 

### sentencing statute provides that ifthe Department finds that the offender has willfully violated conditions ofcommunity custody, "the offender may be reclassified to serve the remaining balance of the originalsentence." RCW 9.94A.662(3). 

### This appeal arises from an incident that occurred inDecember2013. 

### Grisby reported to hiscommunity custodyofficerto provide a urine sample. The officeralleged that Grisby violated the terms of hissentence in two ways: by using a device to alter a urinetestand byfailing to provide a urine sample. 

### Grisbywas taken into custody. Arevocation hearing was held on January 8, 2014, to determine whether Grisby should be returned to prison to serve the remainderof his sentence, aboutthree years. Grisby was not represented by 

### counsel at this hearing. At the hearing, Grisbyasked to call a particular witness who he believed was involved in an investigation pertinentto the alleged 

### violation. With Grisby's permission, the hearing officerspoke to the witness ex 

### parte about the pendinginvestigation. The hearingofficerthenfound Grisby hadNo. 71904-1-1/3 

### committed both violations. The hearing officer revoked Grisby's community custody status. 

### Grisby successfully appealed to the Department's appeals panel. The panel reversed and remanded for a new hearing on the ground that Grisby could not validlyagree to allowthe hearing officer to have an ex parte contactwiththe
witness. 

### On February 20, 2014, the Department held a second violation hearing. By this time, Grisby had consulted with attorney Robert Boruchowitz. Boruchowitz, a professor atthe Seattle University School of Law, was 

### supervising a student clinic on the right to counsel at the time, and he agreed to 

### work on Grisby's case pro bono with the assistance of his students as Rule 9 interns. Atthe hearing, Grisby stated that his attorneys had asked him to request appointed counsel for the hearing. He claimed the Department had the 

### obligation to consider such a request on a case-by-case basis "per case law 

### Gaqnon v. Scarpelli[1] and State v. Zieqenfuss.[2]" Apparently familiar with this line ofcases, the hearing officer asked Grisby whatwould separate his case from anothercase so as to justify appointment ofcounsel. "Whatwould be the need 

### in your circumstance thatwould require you to have counsel?" Grisby responded that he faced losing many months of his lifebackto prison. The hearing officer declined to appoint counsel. The hearing proceeded.

1411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). 

### 2118Wn. App. 110, 74P.3d 1205(2003). review denied. 151 Wn.2d 1016 (2004).No. 71904-1-1/4 

### The officer found Grisby "not guilty" of failing to submit a urine test but 

### "guilty" of trying to alterthe urine test. Again, the sanction imposed was revocation ofGrisby's community custody status. Grisby's appeal to the appeals panel was denied on March 4, 2014. The appeals panel commented that Grisby had notfollowed the correct procedure for having counsel appointed: 

### First of all Mr. Grisby, it is obvious by listening to the recording of the hearing, Hearing Officer Paul Ockerman explained very clearly 

### to you the process thatyour attorney needed to follow ifyou were to be allowed to have such representation. He asked you ifyour attorney had submitted a written requestto the Hearings and Violations Administrator and you said that he had not. Secondly, 

### Hearing Officer Ockerman gave you the opportunity to continue the hearing to allow for this and you clearly stated thatyou did notwant to do so, stating you believed thatyou would receive a fair and impartial hearing. You made the decision to proceed withthe hearing. 

### Boruchowitz, representing Grisby, sent a letterto the hearings and 

### violations administrator asking that Grisby's case be remanded for a third violation hearing. The letter alleged thatthe hearing officer stated erroneously that he lacked the discretion to send Grisbyto previously scheduled inpatient treatment. The letter also alleged that Grisby had been denied the right to call as


### a witness a particularofficer who had given a written statement. The officer had reported as unavailable forthe February 20 hearing. Boruchowitz argued that 

### the hearing should have been continued to permit Grisby to question the officer about inconsistencies between the officer's statement and the statement ofNo. 71904-1-1/5 anotherwitness. On April 4, 2014, the hearings and violations administrator granted Grisby's appeal on that ground and remanded for a third hearing. Boruchowitz wrote to the Department, "We understand that DOC [Department ofCorrections] has a process for requesting counsel. We plan to represent Mr. Grisby at the hearing. Please advise us as to the process of requesting to represent Mr. Grisby at his hearing, including any necessary forms." The next day, Ronda Larson, assistant attorney general representing the Department, informed Boruchowitz that his request to represent Grisby at the hearing could not be accommodated. Although the hearing officer and appeals panel had indicated there was a procedure for requesting the right to be represented by counsel at the hearing, Larson's letter categorically negated that possibility. She stated, "In a DOSA revocation hearing, there is no right to counsel. In re Pers. Restraint of McNeal. 99 Wn. App. 617, 635, 994 P.2d 890 (2000)."
Larson's letter continued: DOSA revocation hearings are legally distinct from probation and parole revocation proceedings inWashington. The latter are prosecuted by the State by way ofthe county prosecutor. Therefore, itwould create an uneven playing field to disallow offenders in probation and parole revocation proceedings to be represented by counsel. Hence, court rule requires offenders to be represented by counsel in such proceedings. See CrR 7.6(b) (requiring counsel at probation revocation hearings).No. 71904-1-1/6 

### Incontrast, DOSA revocation hearings underthe Offender 

### AccountabilityAct[3] (OAA) involve a non-attorney corrections officer bringing a violation allegation. The hearing is not in a court before ajudge but instead in a conference room before a non-attorney hearings officer. Because neitherthe offender nor the corrections officerwho alleges the violation is an attorney, the contest is among equals. And the OAA created the administrative hearing system without 

### attorneys andjudges for the very purpose of simplifying violation hearings. Prior to the OAA, violations hearings occurred incourt before ajudge, with both parties represented by counsel. The result was lengthy delays and concomitant lengthy pre-hearingjail 

### time for offenders. This delay was not to the offenders' benefit, and as a result, the legislature adopted the current system by enacting the OAA. (Footnote omitted). Larson's letter advised Boruchowitz that one attorney would 

### be allowed to attend Grisby's next hearing as an observer ifapproved in



### 3The "offender accountability act" is the title given bythe legislature to a 20-section billenacted in 1999. Laws of 1999, ch. 196, § 18. 

### As early as 1988, the Department had authority to hold hearings and impose sanctions for violations ofcommunity custody. 

### Ifan inmate is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before the department prior to the imposition ofsanctions. The hearing shall be considered as inmate disciplinary proceedings and shall not be 

### subjectto chapter 34.04 RCW. The department shall develop hearing procedures and sanctions. Laws OF 1988, ch. 153, § 4; former RCW 9.94A.205(3). The 1999 enactment known as the offender accountability act added to 

### the above a section requiring the Departmentto develop its hearing procedures by rule, and itspecified a number ofprocedures to be included. Relevant here, the statute did not require the Departmentto considerappointing counsel: (d) The offender shall have the right to: (i) Be present atthe hearing; (ii) have the assistance of a person qualified to assist the 

### offender inthe hearing, appointed by the hearing officer ifthe offender has a language or communications barrier; (iii) testify or remain silent; (iv) call witnesses and presentdocumentary 

### evidence; and (v) question witnesses who appear and testify. Laws of 1999, ch. 196, § 8(4).No. 71904-1-1/7 

### advance, but the attorney would not be allowed to communicate with Grisby at the hearing or during any break. 

### Boruchowitz immediatelyfiled a petition on Grisby's behalfinSnohomish County Superior Court. The petition asked the courtto compel the Department to considerwhetherto appoint Boruchowitz as counsel for Grisby. Boruchowitz argued counsel was necessary because Grisby was unskilled and had a number 

### ofmental health issues that hindered his ability to present his defense effectively on his own. He also asserted that a person facing a revocation hearing is entitled to be represented by retained or pro bono counsel even ifthe 

### Department in a properexercise of its discretion denies appointed counsel. The Department opposed the petition. 

### After a hearing on April 17, 2014, the trial courtgranted Grisby's request by issuing writs ofmandamus and prohibition. The court ruled thatthe 

### Departmentwas obligated to conduct a case-by-case determination ofthe need for appointed counsel—not only inGrisby's case, but in all similarcases when a requestfor a lawyer is made by a person subjectto a community custody violation hearing. The court relied on State v. Ziegenfuss, 118 Wn. App. 110, 74 P.3d 1205 (2003). review denied. 151 Wn.2d 1016 (2004). The order stated: The Petition for a Writ ofMandamus and Writ ofProhibition 

### is GRANTED. It is hereby ORDERED: I. The Department of Corrections shall conduct a determination as contemplated by State v. Ziegenfuss. 118 Wn. App. 110 (2003) whether counsel should be appointed for Mr. Grisby to represent him in his Drug Offender Sentencing Alternative violation hearing. Inmaking that determination the Department should take into account Mr. Grisby's mental health condition. II. Should the Department of Corrections determine inthe exercise of its discretion pursuantto Ziegenfuss, supra, that counsel needNo. 71904-1-1/8

not be appointed for Mr. Grisby, the Department shall permit Mr. Grisby's pro bono retained counsel, Robert C. Boruchowitz and his law student interns, to represent Mr. Grisby at any hearings it conducts regarding Mr. Grisby. III. The Department ofCorrections shall not conduct a Drug Offender Sentencing Alternative violation hearing for Mr. Grisby without permitting counsel to represent him. IV. The Clerk shall provide at public expense a certified copy ofthis Orderto counsel for the Petitioner and an uncertified copy to counsel for the Respondents. V. The Department of Corrections should conduct a case by case determination ofthe need for appointed counsel as contemplated by State v. Ziegenfuss in similarly situated cases when a request for a lawyer is made by the person subjectto a community custody violation hearing. The above-quoted order of April 17, 2014, is the subject ofthis appeal. The third hearing occurred on April 21, 2014, before a different hearing officer. The parties have separately moved to supplement our record with the transcript and orderfrom that hearing, and we grant the parties' motions. Atthe hearing, Boruchowitz and two students represented Grisby. A community corrections officer represented the Department. On the issue of guilt, the result

was the same as at the second hearing. The hearing officerfound Grisby guilty ofusing a device to alter a urine test and not guilty of failing to provide a urine test. But instead ofsanctioning Grisby by returning him to prison for the remaining three years of his sentence, the hearing officerordered him released to a 30-day treatment program. MANDAMUS—CLEAR DUTY TO ACT On appeal, the Department challenges the trial court order on the ground that mandamus was inappropriate. A writ of mandamus must satisfy three elements: (1) the party subject to the writ is under a clear duty to act; (2) the

8No. 71904-1-1/9 

### applicant has no plain, speedy, and adequate remedy inthe ordinary course of law; and (3) the applicant is beneficially interested. RCW 7.16.160, .170. Relying on McNeal, the Department maintains that itdoes not have a clearduty to consider whether a particularoffender is, as a matter ofdue process, entitled to appointed counsel in a community custody revocation hearing. Relying on 

### Ziegenfuss, Grisby responds thatthe Department does have that clearduty. The Department's appeal requires us to choose between McNeal and 

### Ziegenfuss. Though both cases are from DivisionOne ofthe CourtofAppeals, they are inconsistent intheir interpretation ofGagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). 

### As a preface to ourdiscussion ofScarpelli, we point outthatwe are not concerned here with the Sixth Amendment. The Sixth Amendment provides as follows: In all criminal prosecutions, the accused shall enjoy the right 

### to a speedy and public trial, by an impartial jury ofthe State and district wherein the crime shall have been committed, which district 

### shall have been previously ascertained by law, and to be informed ofthe nature and cause ofthe accusation; to be confronted with the 

### witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance ofCounselfor his defence. 

### U.S. Const, amend. VI (emphasis added). The Sixth Amendment right to counsel is the foundation for the right ofan indigentdefendantto have counsel appointed at state expense in a criminal prosecution. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963); Aroersinqer v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). The focus ofthe Sixth Amendment right to 

### counsel inquiry is whetherthe eventfor which the defendant argues counsel isNo. 71904-1-1/10
necessary is a "critical stage" ofthe criminal prosecution. State v. Harell, 80 Wn. App. 802, 804, 911 P.2d 1034 (1996). Revocation of a postconviction status like community custody is not a critical stage ofprosecution, so the Sixth Amendment right to counsel does not attach. See Scarpelli, 411 U.S. at 781. After conviction, an individual who does not have a Sixth Amendment right to counsel may invoke the due process clause ofthe Fifth Amendment to obtain procedural protection when facing a loss of liberty. The minimum requirements ofprocedural due process along the spectrum ofpostconviction proceedings

were setforth in a trio of decisions by the United States Supreme Court in 1972, 1973, and 1974, beginning with Morrissev v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). In Morrissev, two felons in Iowa filed habeas petitions alleging thatthe 

### State's decision to revoke their parole without a hearing violated their right to procedural due process. The Supreme Court determined thatwhen a parolee is 

### suspected of violating conditions ofparole, due process requires both a preliminary probable cause hearing at the time of arrest and a more comprehensive hearing before the final revocation decision. Atthe preliminary 

### hearing, the offender is entitled to notice ofthe alleged violations, an opportunity to appear and presentevidence, a conditional right to confront adverse witnesses, an independent decision-maker, and a written report ofthe hearing. Morrissev, 408 U.S. at487. The minimum requirements of due process atthe final hearing are written notice ofthe claimed violations, disclosure ofevidence against the offender, the opportunityto be heard in person and to present

10No. 71904-1-1/11 

### witnesses and documentary evidence, to confront and cross-examine adverse witnesses, a neutral hearing body, and a written statement by the fact finders as
to the evidence relied on and reasons for revocation. Morrissev, 408 U.S. at 489. 

### Morrissev did not address the issue of legal representation. "We do not reach or decide the question whetherthe parolee is entitled to the assistance ofretained 

### counsel or to appointed counsel ifhe is indigent." Morrissev, 408 U.S. at 489. In Scarpelli, the Court readily extended the minimum due process requirements of Morrissev for revocation ofparole to the revocation ofprobation because, despite minor differences, both "result in a loss of liberty." Scarpelli. 411 U.S. at 782. The more difficult issue raised by probationer Scarpelli was 

### "whetheran indigent probationeror parolee has a due process right to be represented by appointed counsel atthese hearings." Scarpelli, 411 U.S. at 783. The government asked the Courtto rule that "counsel need never be supplied" because the Morrissev requirements "serve as substantial protection against illconsidered revocation." Scarpelli, 411 U.S. at 786. The Court rejected this argument, recognizing that "the effectiveness ofthe rights guaranteed by Morrissev may in some circumstances depend on the use of skills which the 

### probationeror parolee is unlikely to possess." Scarpelli, 411 U.S. at786. Atthe

same time, the Courtdecided against declaring a constitutional right to counsel in all revocation proceedings, citing concerns about costs, delays, and the loss of flexibility. Scarpelli, 411 U.S. at 787-88. The Court steered a middle course, holding that a correctional authority must undertake a case-by-case evaluation of the need for counsel in probation and parole revocation hearings:

11No. 71904-1-1/12 

### We thus find no justification for a new inflexibleconstitutional rule with respectto the requirement ofcounsel. We think, rather, that the decision as to the need for counsel must be made on a 

### case-by-case basis inthe exercise of a sound discretion bythe state authority charged with responsibility for administering the probation and parole system. Although the presence and 

### participation ofcounsel will probably be both undesirable and constitutionally unnecessary inmost revocation hearings, there will remain certain cases in which fundamental fairness—the 

### touchstone ofdue process—will require thatthe State provide at its expense counsel for indigent probationers or parolees. Scarpelli, 411 U.S. at 790. The Court acknowledged thatthe case-by-case 

### approach formerly used to determine the SixthAmendment right to counsel under Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L Ed. 1595 (1942), 

### overruled by Gideon, 372 U.S. 335, had ultimatelybeen rejected in favor of a per

se rule. Scarpelli, 411 U.S. at 788. The Court concluded, however, that a per se 

### rightto counsel rule was notnecessaryfor revocation hearings in view of the limited due process right of a person who has already been convicted and
sentenced. Inthe third case, the Court was asked to decide what procedural 

### protections are required in prison discipline proceedings, such as those where inmates face a loss of "good time." Wolffv. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Rejecting the State's argumentthat prisoners 

### have no protected libertyinterest, the Court stated that prisoners have a liberty interest, albeit a lesserone than that of a probationeror parolee. The Court 

### noted thatthe State has a significant interest inthe orderly administration of a 

### prison system, and itacknowledged the additional safety concerns inherent in the close proximity in which inmates and prison staff exist. The Courtwas

12No. 71904-1-1/13 specifically concerned with the likelihood ofretaliation against accusers or witnesses. With these concerns in mind, the Court did not include an unqualified right to a hearing or a right to confrontwitnesses among the minimal due process protections for prisoners. A prisoner has a right to advance written notice ofthe allegations against him and a written statement ofthe fact finder as to the evidence relied on and the reasons for the disciplinary action taken. The right to 

### call witnesses and presentdocumentary evidence may be afforded when not unduly hazardous to institutional safety or correctional goals. Wolff, 418 U.S. at 563-72. There is no right to counsel, but an inmate has the right to "seekthe aid of a fellow inmate, or ifthat is forbidden, to have adequate substitute aid inthe form ofhelp from the staffor from a sufficiently competent inmate designated by the staff' to help him present his case ifthe inmate is unable to do so himself. Wolff, 418 U.S. at 570. To summarize, Wolffsets forth the minimum due process requirements for "the discipline of infractions which occurred within the prison." Arment v. Henry, 98 Wn.2d 775, 779, 658 P.2d 663 (1983). A convicted offenderwho is subjectto restriction but not living behind bars has a greater liberty interestthan a prison inmate, and the more rigorous Morrissev requirements apply. Thus, Morrissev applies when an offender in community custody faces allegations by the Departmentthat may result in his being returned to total confinement. Although that individual's liberty is restricted by conditions and supervision, "here we are concerned with the liberty interest of a person in the community, one who is not behind bars." McNeal, 99 Wn. App. at 633.

13No. 71904-1-1/14 We now come to the question inthis case: in a hearing to determine 

### whether community custody should be revoked, does minimum due process include the Scarpelli requirement of a case-by-case determination ofthe right to appointed counsel? The McNeal court answered "no" to precisely this question, and the Department maintains that McNeal is "binding precedent." 

### McNeal brought a personal restraint petition afterthe Department returned him to prison as a sanction for violations ofcommunity custody conditions. Atthe time, a statute provided that a violation hearing for an offenderwho was serving

a term ofcommunity custody was "considered as inmate disciplinary proceedings." Former RCW 9.94A.205(3) (1996), quoted in McNeal, 99 Wn. App. at 624; Laws of 1988, ch. 153, § 4. The Department argued that underthe plain language ofthe statute, a community custody revocation hearing was to be treated as a prison disciplinary proceeding subject only to the minimal due process requirements of Wolff. The McNeal court determined, however, thatthe 

### constitutional minimum procedural due process requirements in a community custody revocation hearing were identical to those required in Morrissev. McNeal, 99 Wn. App. at 627-34. Once an individual is released from prison confinement into 

### community custody and able to be with family and friends, be employed or attend school and live a relatively normal life,that person's interest in remaining inthe community is the same as a parolee's. McNeal, 99 Wn. App. at 633. Up to this point of McNeal, its holding is not presently in dispute.

14No. 71904-1-1/15 

### Having decided that McNeal's libertyinterestwas the same as that of a parolee or probationer, the courtdetermined that unlike a parolee or probationer, McNeal was notentitled to have the Department considerwhether he was 

### entitled to appointed counsel at the revocation hearing. The court understood Scarpelli as requiring a case-by-case determination ofthe right to counsel at a revocation hearing only in a probation or parole system designed to be rehabilitative. Characterizing community custody inWashington as punitive in nature ratherthan rehabilitative, the court rejected McNeal's argumentthatthe Departmentwas bound to apply Scarpelli in violation hearings: We disagree because, atthis juncture, the distinction between the 

### goals ofparole and community custodywe discussed earlierin this opinion becomes critical. The focus ofthe Scarpelli opinion is on the rehabilitative goal ofprobation and parole. Parole officers, who are normally 

### concerned with successfully rehabilitating the parolee within the 

### community, sometimes nevertheless recommend that parole be revoked.47 When this happens, the parole officer is no longerthe parolee's advocate and advisor. He or she becomes an adversary 

### during the revocation process, and counsel is needed to insure that 

### the rehabilitation effort is not interrupted unnecessarily.48 Because the focus ofthe hearing is often on the extent ofand future potential for rehabilitation, counsel may be necessary to advocate for the 

### parolee. Butas we noted above, our Supreme Court had held that community custody, despite some rehabilitative adjuncts, is 

### primarily punitive innature.49 Absentthe rehabilitative goal of probation and parole, the rationale ofScarpelli does not apply. And the burden on the State of providing counsel, including delay in and formalization ofthe hearings, the added expense and the administrative burden, override the marginal value counsel would 

### provide at these in-custody hearings.50 The decision to revoke community custody is based primarily on factual determinations about whetherthe individual violated the conditions of community 

### custody. The success or failure ofthe rehabilitative process is not even a factor. 47 Scarpelli, 411 U.S. at 785. 48 Id. at 785-86.

15No. 71904-1-1/16 49 rstate v. Ross, 129 Wn.2d 279, 286, 916 P.2d 405 (1996)]. 50 Morrissev. 408 U.S. at 481; Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)]. 

### McNeal, 99 Wn. App. at 634-35. Thus, the court concluded thatthe Morrissev 

### requirements are sufficient to protect againsta wrongful revocation of community custody and counsel is never required. 

### The Department's procedural regulations for violation hearings are consistentwith McNeal. SeeWAC 137-104-060(7): "There is no right to an attorney orcounsel." 

### McNeal was not this court's lastword on the meaning ofScarpelli. The 

### applicability of Scarpelli arose again in 2003 in Ziegenfuss. The appeal was from

a sentence imposing a legal financial obligationas a condition ofsentence. 

### Appellant Ziegenfuss contended the trial court should have waived the obligation because of her indigency. She argued that the Department's procedures for 

### adjudicating violations ofsentence conditions were constitutionallyinadequate to 

### protect herfrom being punished for a nonwillful failure to pay the legalfinancial obligation. She particularlyobjected that the regulations violate due process 

### "becausethey expressly prohibitrepresentation by counsel in the hearings," citing WAC 137-104-060(7). Ziegenfuss, 118Wn. App. at 116. The court concluded the Department's hearing procedures were consistentwith Morrissev. Ziegenfuss, 118Wn. App. at 113-14. As to the right to counsel, the court 

### expressly refused tofollow McNeal and held that the right to counsel was to be determined on a case-by-case basis under Scarpelli:

16No. 71904-1-1/17 The State contends that under McNeal, due process does not 

### require representation bycounsel in community custody violation hearings. The right to counsel, however, is determined on a caseby-case basis. 

### Ziegenfuss, 118 Wn. App. at 116 (footnote omitted). The court also distinguished 

### McNeal factually on the ground that community custody had been given a broader definition in the intervening years: 

### We note that Ziegenfuss' case differs factually from McNeal inthat McNeal was decided when community custody referred only 

### to DOCsupervision in lieu ofearned early release. McNeal simply interpreted the UnitedStates Supreme Court's decision in Scarpelli, which held thatthe question ofwhetherdue process requires counsel at parole revocation hearings must be answered on a 

### case-by-case basis. Scarpelli, 411 U.S. at 790. Ziegenfuss, 118 Wn. App. at 116 n.24. 

### McNeal and Ziegenfuss are in conflict with regard to whether a case-bycase evaluation ofthe need for counsel is necessary. Division Two has 

### recognized the conflict. In re Pers. Restraint ofPrice, 157Wn. App. 889, 906, 240 P.3d 188 (2010). In Price, an offenderchallenged the revocation of his drug 

### offendersentencing alternative sentence on the ground that the Department's denial ofappointed counsel was a procedural due process violation. The court noted that McNeal "appears to conflictwith" the observation inZiegenfuss that 

### the rightto counsel at such hearings should be determined on a case-by-case basis, "as Scarpelli counsels." Price, 157 Wn. App. at 906. The court quoted 

### Scarpelli's suggested criteria forjudging when counsel should be provided. Under Scarpelli, the offender should presumptively be provided with counsel in 

### certain circumstances, forexample where the argument against revocation is complex or difficult to present:

17No. 71904-1-1/18 

### Presumptively, itmay be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i)that he has not committed the alleged violation ofthe conditions upon which he is at liberty; or (ii) that, even ifthe violation is a matterofpublic record or is uncontested, there are substantial reasons whichjustified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. Inpassing on a requestfor the appointment ofcounsel, the responsible agency also should consider, especially in doubtful cases, whether 

### the probationer appears to be capable ofspeaking effectively for himself. Inevery case inwhich a requestfor counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record. Scarpelli, 411 U.S. at 790-91, guoted in Price, 157 Wn. App. at 905. In Price, the courtfound itunnecessary to resolve the conflict because the offenderwould not have been entitled to counsel even ifthe Department had followed Scarpelli. "This was not a complex case that involved evidentiary or legal subtleties. Rather, the case turned on straightforward factual determinations about the alleged violations and the credibility of various witnesses." Price, 157 Wn. App. at 906. We cannot avoid resolving the conflict inthis case. IfMcNeal is correct in its interpretation of Scarpelli, the Departmentdoes not have a clearduty to evaluate the need for appointed counsel in a community custody revocation hearing on a case-by-case basis under Scarpelli, and the trial court erred in issuing the writ of mandamus. The Department attacks the Ziegenfuss observation about Scarpelli as dicta, and arguably it is. The Department also argues that even if it is not dicta, Ziegenfuss incorrectly found McNeal to be factually distinguishable. As the

18No. 71904-1-1/19 Department points out, the statutes at issue in McNeal are not distinctfrom current statutes inthe way the Ziegenfuss court believed they were. Atthe time McNeal was decided in 2000, community custody could be a part of a drug offender alternative sentence. But the Department's critiques ofZiegenfuss miss the main point. The vital question is which opinion correctly interpreted Scarpelli— McNeal or Ziegenfuss? The rationale of Scarpelli is not that an attorney becomes valuable only in

a hearing thatfocuses on the offender's potential for rehabilitation. Under Scarpelli, if a convicted offenderfaces an allegation that might result in a return to prison after he has been released to the community, the hearing authority must evaluate a request for counsel on a case-by-case basis. The case-by-case evaluation requirement is imposed because there are occasions when, by virtue ofthe offender's individual circumstances, he would be deprived ofprocedural due process ifcounsel were not appointed to present his case. See Scarpelli, 411 U.S. at 783-85 (discussing rehabilitation), 786-90 (discussing case-by-case evaluation). The majority decision in McNeal interprets Scarpelli incorrectly for allthe reasons articulated by Judge Webster, who dissented in McNeal as follows: Itwas for this reason, the risk that in some cases the Morrissey protections would be ineffective inthe absence ofcounsel, thatthe Court determined that due process required counsel in those

cases. Isubmit thatthis same risk is present in community custody revocations. The "unskilled or uneducated" individual in community custody may no doubt have difficulty in presenting his version of disputed facts where itrequires the examination or crossexamination ofwitnesses or presentation of documentary evidence.

19No. 71904-1-1/20 

### Furthermore, as McNeal argues, the fact that community custody is primarily punitive ratherthan rehabilitative supports a 

### finding that due process requires counsel incertain cases. The risk of an erroneous deprivation of a liberty interest is less likely in a 

### system operating withthe goals ofthe parolee's rehabilitation and reintegration into society than it is in a system operating with punitive goals. Thus, the need for counsel incertain cases is heightened ratherthan diminished by the punitive nature of community custody. McNeal, 99 Wn. App. at 637-38 (Webster, J., dissenting in part). 

### We agree with Judge Webster's dissent. Scarpelli's requirementfor a case-by-case determination ofthe need for counsel does not depend on the degree to which the supervising system focuses on rehabilitation ratherthan punishment. And to the extentthat Scarpelli makes the punitive aspect of a community 

### custody system relevantto the case-by-case determination, we disagree with McNeal's premise that community custody exists for primarily punitive purposes. 

### Grisby was serving the community custody portion of a drug offenderalternative sentence. Manifestly, the legislature intended this sentencing alternative sentence to be rehabilitative, as itprovides for substance abuse assessment and 

### treatment during community custody. RCW 9.94A.662.4 Inshort, we disagree with McNeal's categorical determination that due process never requires the appointment ofcounsel. Properly interpreted, Scarpelli requires the Departmentto make a case-by-case determination.

4The statement in McNeal that community custody is punitive ratherthan rehabilitative was plucked out ofcontextfrom Ross, 129 Wn.2d at 286. In Ross, 

### the court decided that a mandatory term ofcommunity placement constitutes a direct consequence of a guilty plea because it is a form ofrestriction added on to a prison term and failure to so inform a defendant renders the plea invalid. 20No. 71904-1-1/21

DISAGREEMENT WITH OUR PREVIOUS OPINION 

### This brings us to a secondary issue: even though we disagree with McNeal's interpretation ofScarpelli, mustwe nevertheless follow McNeal as a matter ofstare decisis? The Departmentcontends thatthis court's previous 

### holding in McNeal is "controllinglaw" and "bindingprecedent" thatthis court must follow because no "controlling precedent" has changed its holding and because Ziegenfuss did not overrule McNeal. At oral argument before this court, the 

### Department argued that as a matterofstare decisis, this court could not "overrule" its own decision in McNeal inthe absence ofan intervening ruling by 

### eitherthe Washington Supreme Court or the UnitedStates Supreme Court. The various panels ofthe Court ofAppeals strive not to be in conflict with each other because, like all courts, we respectthe doctrine ofstare decisis. Our 

### Supreme Court eloquently discussed stare decisis inIn re Rights toWaters of Stranger Creek. 77 Wn.2d 649, 653, 466 P.2d 508 (1970). Inthat case, one 

### party asked the court to reexamine a question it had decided in previous cases. The otherparty asserted that the court was precluded fromentertaining an argumentto change the law,especially because the status quo had been established inreliance upon the previous cases. The court responded that 

### precedents are not unalterable, and it is appropriate to hearan argumentfor a change inthe law upon a clearshowing thatthe established rule is incorrect and
harmful: Stare decisis is a doctrine developed by courts to 

### accomplish the requisite element of stability incourt-made law, but is not an absolute impedimentto change. Withoutthe stabilizing effect ofthis doctrine, law could become subjectto incautious

21No. 71904-1-1/22 

### action or the whims ofcurrent holders of judicial office. But we also recognize that stability should not be confused with perpetuity. If the law is to have a current relevance, courts must have and exert 

### the capacityto change a rule of law when reason so requires. The true doctrine ofstare decisis is compatible with this function ofthe 

### courts. The doctrine requires a clear showing that an established rule is incorrect and harmful before it is abandoned. Thus 

### understood, the doctrine ofstare decisis does not preclude consideration ofthe department's arguments. Stranger Creek. 77 Wn.2d at 653. 

### Later Supreme Court cases have incorporated the StrangerCreek 

### analysis into a formal requirementthat litigants who askthe courtto overrule a priordecision must showthatthe priordecision is both incorrect and harmful. See^e^, Key Design Inc. v. Moser. 138 Wn.2d 875, 882, 983 P.2d 653, 993 

### P.2d 900 (1999) ("Wewill not overturn an established ruleunless the party challenging itmakes a clearshowing thatthe rule is incorrect and harmful.") Only a few Court ofAppeals opinions have expressly applied the same test or indicated that parties mustbriefit.5 The Department cites one such case,



### 5These cases are Keck v. Collins. 181 Wn. App. 67, 91, 325 P.3d 306 (2014), affirmed but criticized by No. 90357-3, 2015 WL5612829 (Wash. Sept. 24, 2015); Fergen v. Sestero. 174 Wn. App. 393, 398, 298 P.3d 782 (2013) (declining appellant's invitation to findprevious rule is incorrect and harmful), affirmed. 182 Wn.2d 794, 346 P.3d 708 (2015); Fed. Way Sch. Dist. 210 v. 

### Vinson, 154 Wn. App. 220, 235, 225 P.3d 379 (2010) (Dwyer, J., dissenting), reversed. 172 Wn.2d 756, 261 P.3d 145 (2011); State v. Stalker. 152 Wn. App. 

### 805, 811-12, 219 P.3d 722 (2009), review denied, 168 Wn.2d 1043 (2010); State v. Yarbrough, 151 Wn. App. 66, 84 n.5, 210 P.3d 1029 (2009); Little v. King. 147 

### Wn. App. 883, 889, 198 P.3d 525 (2008); State v. Zimmerman. 130 Wn. App. 170, 175-76 n.4, 121 P.3d 1216 (2005), affirmed on remand, 135 Wn. App. 970, 146P.3d 1224 (2006), review denied, 161 Wn.2d 1012 (2007); Kinq v. W. United Assur. Co.. 100Wn. App. 556, 561,997P.2d 1007, review denied, 141 Wn.2d 

### 1027 (2000); State v. Coss. 87 Wn. App. 891, 904, 943 P.2d 1126 (1997) (Brown, J., dissenting), review denied. 134Wn.2d 1028 (1998); Magnev v. Lincoln Mut. Sav. Bank. 34 Wn. App. 45, 61 n.1, 659 P.2d 537 (Mclnturff, J„ dissenting), review denied, 99 Wn.2d 1023 (1983). 22No. 71904-1-1/23 

### Little v. King, as authority forthe argumentthat stare decisis precludes us from "overruling" McNeal. Little v. King, 147 Wn. App. 883, 198 P.3d 525 (2008). Little, however, simply articulates the uncontroversial proposition that this court, likethe Supreme Court, is "exceedingly reluctantto disagree with recent 

### opinions." Little. 147 Wn. App. at 889. The Littlecourtdecided to "departfrom"

a previous CourtofAppeals decision in view ofthe reasoning of an intervening Supreme Court decision that indicated the previous Court ofAppeals decision

was incorrect. Little, 147 Wn. App. at 889. Technically speaking, one panel ofthe Court ofAppeals does not 

### "overrule" a decision of a previous panel.6 The court rules implicitly recognize 

### that only the Supreme Court can overrule a Court of Appeals decision.7 Where "the decision ofthe Court ofAppeals is in conflict with another decision ofthe



### 6Little has been cited to supportthe assertion thatthis court uses the same standard for "overruling" precedent as does the Supreme Court. State v. Stalker, 152 Wn. App. at 811-12. In Stalker, the court determined that "the strict 

### standard for overruling" a prior case had not been met. Stalker. 152 Wn. App. at 814. Ofcourse it is not inappropriate for this courtto considerwhether a previous opinion is incorrect and harmful inthe course ofdeciding whether or not to follow it. But as discussed above, this court does not overrule prior decisions. 

### Consequently, it is not obligatory for this courtto use, or for parties to brief in this court, a standard developed by the highest state courtfor its own use in 

### determining whetherto overrule one of its own decisions. Stalker's contrary dicta should not be taken as a new requirementto be met in briefs and argument before the Court ofAppeals. 

### 7The onlycontrary statement by our Supreme Court is in a footnote in International Association of Fire Fighters. Local 46 v. City of Everett. 146Wn.2d 29, 37 n.9, 42 P.3d 1265 (2002), where the court opined thatthe Court of Appeals "can overrule a previous decision" if it is demonstrably incorrect or harmful. However, for this statementthe court cited King, a Court ofAppeals decision. The King court did not state that itwas overruling the previous decision—rather, agreeing with a party's argument that the previous decision 

### was "wrongly decided," the court stated "we disagree with"the previous decision and "decline to follow" it. King, 100Wn. App. at 560-61. 23No. 71904-1-1/24 

### Court ofAppeals," a basis exists for a petition fordiscretionary review by the Supreme Court. RAP 13.4(b)(2). Ifthe most recent Court ofAppeals opinion overruled conflicting Court ofAppeals decisions and replaced them as binding 

### precedentand controlling authority, nodecisions would be inconflictand RAP 13.4(b)(2)would no longerserve any purpose as a basis for discretionary review. 

### The Supreme Courtsettles the law when Court of Appeals decisions are in conflict.8 Itfollowsthattwo inconsistentopinions ofthe Court ofAppeals may exist atthe same time. See Mark DeForrest, Inthe Groove or in a Rut? 

### Resolving Conflicts between the Divisions ofthe Washington State Courtof Appeals atthe Trial Court Level, 48 Gonz. L. Rev. 455 (2012/13). We have 

### found no Court of Appealsopinionthatactually states it isoverruling an earlier 

### CourtofAppealsopinion. When one of our panels concludes that aprevious Court of Appeals decision used afaulty legal analysis or has been undermined 

### by somenewdevelopmentinthelaw, theopinionwill usually state simplythat the panel "disagrees with," "departsfrom," or "declines tofollow" the other opinion.9



### 8See^e^, State v. Nunez, 174Wn.2d 707, 285 P.3d21 (2012) (resolving 

### adisagreementbetween Divisions One andThree); Statev. Borboa, 157Wn.2d 108,135 P.3d469 (2006) (resolving a disagreementbetween Divisions One and 

### Two); McClartvv. Totem Elec, 157Wn.2d 214, 137 P.3d 844(2006) (resolving a disagreementbetween Divisions Two and Three). 

### 9See, §_£,, State v. Mohamed, 175Wn. App. 45, 55, 301 P.3d 504("We 

### disagree . . . because, in ourview, the statement islegally incorrectdictathat we decline to follow"), review denied, 178 Wn.2d 1019 (2013); State v. Grant, 172 

### Wn. App. 496, 503,301 P.3d459 (2012) ("We respectfully disagreewith the Korum court's analysis"), review denied, 177 Wn.2d 1021 (2013); City of Kent v. 

### Mann, 161 Wn. App. 126, 128, 253 P.3d409 (2011); Thompsonv. Hanson, 142 

### Wn. App. 53, 63, 174P.3d 120(2007) ("Wedisagreewith DivisionThree's conclusion

. . . ."), affirmed, 168 Wn.2d 738, 239 P.3d 537 (2009); State v.Giles, 24No. 71904-1-1/25 Mr. DeForrest's thoughtful and persuasive article points outthe problems 

### created by "a pure 'first to the post'" rule, "wherein the earliest decision by one of the divisions functions to establish binding precedent on the otherdivisions,

come rain or shine." DeForrest, 48 Gonz. L. Rev. at 504. As he points out, ifthe first panel to decide an issue gets itwrong, the errorwould be perpetuated unless and until the Supreme Courttook review. He regards the existence of 

### splits withinthe Court ofAppeals as serving the positive function ofalerting the high courtto unsettled areas ofthe law that are in need of review. DeForrest, 48 Gonz. L. Rev. at 505. His article discusses the options available to superior courts when conflicting Court ofAppeals opinions exist. In his view, a superior court need not consider itselfbound by the opinion from the division inwhich the superior court sits, but should instead use itsjudgmentto attemptto determine 

### which opinion the Supreme Courtwould agree with. DeForrest, 48 Gonz. L. Rev.
at 457, 506-11. It is relatively uncommon, but not unknown, for panels within a single division to be inconflictwith each other.10 Here, we confront a conflictwithin

132 Wn. App. 738, 741, 132 P.3d 1151 (2006) ("We respectfully disagree with our learned colleagues

. . . and diverge from their holding here"), review denied, 160 Wn.2d 1006 (2007); Gontmakher v. City of Bellevue. 120 Wn. App. 365, 374, 

### 85 P.3d 926 (2004) ("We decline to follow"); King., 100Wn. App. at 561; State v. Grantham. 84 Wn. App. 854, 860, 932 P.2d 657 (1997) ("We do not find the analysis

. . . persuasive here.") 

### 10 See, e&, State v. Hochhalter. 131 Wn. App. 506, 128 P.3d 104 (2006), disagreed with by Giles. 132 Wn. App. 738: Trachtenberq v. Dep't ofCorr.. 122 Wn. App. 491, 93 P.3d 217 (2004), disagreed with by Arnold v. City ofSeattle. 

### 186 Wn. App. 653, 345 P.3d 1285 (2015). petition for review granted, No. 91742- 6 (Wash. Sept. 30, 2015); Castronuevo v. Gen. Acceptance Corp., 79 Wn. App. 747, 905 P.2d 387 (1995), disagreed with by King, 100Wn. App. at 561; State v. Begin. 59 Wn. App. 755, 759-60, 801 P.2d 269 (1990). review denied, 116 25No. 71904-1-1/26 

### Division One: Ziegenfuss disagreed with McNeal about how to read Scarpelli. 

### Scarpelli is an opinion by the UnitedStates Supreme Court describing a duty owed underthe due process clause ofthe United States Constitution. 

### Because we conclude Scarpelli imposes upon the Department a clearduty to considerthe right to counsel on a case-by-case basis in community custody violation hearings, we must also conclude thatZiegenfuss was right on that issue 

### and McNealwas wrong. Though no intervening statute or highercourt decision has cast doubt upon McNeal, the doctrine ofstare decisis does not preclude us from stating a holding that is inconsistentwith McNeal. 

### We recognize that the Department has relied on McNealas authority to structure its hearings without giving case-by-case consideration ofan offender's requestfor counsel and that complying with ourdecision may be burdensome. These considerations cannot interfere with ourduty to enforce a constitutional right. Ziegenfuss and Price already signaled to the Departmentthat McNeal 

### should not be considered unshakeable in its reading ofScarpelli. What has 

### happened isthatthe superiorcourt, faced with two conflicting Court ofAppeals decisions, made ajudgmentthat our Supreme Court is more likely to agree with Ziegenfuss than with McNeal. Scarpelli requires a case-by-case determination. MANDAMUS—NO OTHER ADEQUATE REMEDY 

### The Department contends thateven ifthere is a clearduty under Scarpelli to make a case-by-case determination, mandamus was inappropriate in Grisby's

Wn.2d 1019 (1991), disagreed with by State v. King, 75 Wn. App. 899, 913, 878 P.2d 466 (1994), review denied, 125Wn.2d 1021 (1995), disagreement resolved. 

### State v. Hardy, 133 Wn.2d 701, 708-09, 946 P.2d 1175 (1997). 26No. 71904-1-1/27

case because he had a plain, speedy, and adequate remedy inthe ordinary

course of law through the filing of a personal restraint petition. What constitutes a plain, speedy, and adequate remedy depends on the facts ofthe case and rests within the sound discretion ofthe court inwhich the writ is sought. City of Olvmpia v. Thurston County Bd. of Comm'rs, 131 Wn. App. 85, 95, 125 P.3d 997 (2005), review denied, 158 Wn.2d 1003 (2006). The trial court did not abuse its discretion in finding that Grisby had no plain, speedy, and adequate remedy at law. Reliefsought in a personal restraint petition is available only where the offender is already under unlawful restraintfrom the challenged decision. RAP 16.4(c). It is not available to challenge a future decision that may result in confinement. Incontrast, mandamus allowed Grisby to get infront of a judge
before he was confined. The Department also argues thatthe trial courtexceeded the proper scope ofmandamus reliefby extending its ruling into the future for offenders similarly situated to Grisby. Writs are not directed at a general course of conduct. Walkerv. Munro, 124 Wn.2d 402, 407, 879 P.2d 920 (1994). The court ordinarily will not issue a writ unless the duty exists at the time the writ is sought. Walker, 124 Wn.2d at409. It"'must appearthat there has been an actual default inthe performance of a clear legal duty then due at the hands ofthe party againstwhom reliefis sought. Untilthe time fixed for the performance ofthe duty has passed, there can be no default ofduty.'" Walker, 124 Wn.2d at 409, quoting State ex rel. Hamilton v. Cohn, 1 Wn.2d 54, 58-59, 95 P.2d 38 (1939).

27No. 71904-1-1/28 

### This rule, however, does not apply when the courtfaces a recurring situation where the same specific duty repeatedly arises. See Clark County Sheriffv. Department ofSocial & Health Services, 95 Wn.2d 445, 626 P.2d 6 

### (1981). In Clark County Sheriff, the sherifffiled a petition for writ ofmandamus to compel the Departmentto accept allconvicted felons he offered fortransferto the reception center inShelton, Washington. Atthe time, a statute stated that the Department "'shall receive'" all men convicted of a felony. Clark County Sheriff, 95 Wn.2d at447. The Department maintained that ithad discretionary 

### authority to delay acceptance of felons in light of overcrowding at its facilities. The court rejected the Department's argument and ordered it to receive all convicted male felons, otherthan those specifically exempted by other statutes,
at the corrections centerwhen offered for admission. Clark County Sheriff, 95 

### Wn.2d at448. The court also rejected the Department's argumentthatthe writ 

### improperly compels a general course ofconduct. "Here, while it istrue that the order is broad enough to command future acts ofthe Department, the acts are 

### precisely defined.

. . . The acts required will not vary withchanging circumstances. The writwas appropriate and the courtdid not err ingranting it." Clark County Sheriff, 95 Wn.2d at450 (footnote omitted). This case is like Clark County Sheriff. The Department has a clearduty to 

### determine on a case-by-case basis whether offenders facing revocation of community custody are entitled to appointed counsel under Scarpelli. Because the Department has refused to recognize this duty, the trialcourt properly ordered the Departmentto make the case-by-case determination as

28No. 71904-1-1/29 

### contemplated byZiegenfuss—notjust in this case, but in similarcases when a request is made by the person subjectto a hearing. RETAINED COUNSEL 

### Ifthe Department had considered Grisby's requestfor appointed counsel under Scarpelli and denied it, parttwo ofthe superior court's order required the Departmentto permit Boruchowitz to represent Grisby as retained counsel. Part 

### three ofthe order categorically prohibited the Departmentfrom conducting a 

### violationhearing for Grisby without permitting counsel to represent him. Grisby has cited no authority establishing a clearduty to permit representation by retained counsel inrevocation hearings. Whetherthere is a 

### right to retained counsel was expressly reserved by Scarpelli, 411 U.S. at 783 n.6. We have found one case where that issue was decided in the affirmative. State v. Young, 122 Idaho 278, 282-83, 833 P.2d 911 (1992). Because Young



### was not cited or briefed bythe parties, we choose not to rely on itas establishing



### a clearduty. The onlyclearduty Grisby has established isthe case-by-case determination required by Scarpelli. On this record, we conclude parts two and three ofthe order must be reversed. Affirmed in part, reversed in part.

WE CONCUR:

•'•! "i Ir.'K 29