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### FILE IN CLERK'S OFFICE SUPREME COURT, STATE OF WASHINGTON 

### APR 0

### '? 2016 DATE

____ _



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STEVENP. KOZOL, Respondent,
V. WASHINGTON STATE DEPARTMENT OF CORRECTIONS, Petitioner. NO. 9 2 1 9 0- 3

ENBANC

Filed: 

### APR 0 '? 

### 2016

PER CURIAM-Prison inmate Steven Kozol seeks to file a statutory petition for writ ofreview under chapter 7.16 RCWto challenge a prison disciplinary sanction imposed by the Department of CoiTections. On Kozol's appeal from the superior court's denial ofhis request to present a writ petition, the Court ofAppeals held that Kozol could petition for such a writ in challenging a prison disciplinary decision. Butbecause a personal restraint petition is an "adequate remedy at law" for challenging such a decision inthis case, Kozol cannot establish abasis for a statutory writ. Wy therefore grant the State's petition for review and reverse the Court of Appeals. FACTS The Department of ColTections alleged that Kozol committed a serious infraction as defined underWAC 137-25-030 (Category D, 740: committing fraud orNo.92190-3 PAGE2 embezzlement, or obtaining goods, services, money, or anything else ofvalue under false pretenses). A disciplinary hearing officer found Kozol guilty ofthe infraction and imposed a sanction of 10 days ofcell confinement. There was no apparent loss of earlyrelease credit. Ordinarily, an inmate challenging a prison disciplinary sanction does so by personal restraint petition. See, e.g., In re Pers. Restraint ofGrantham, 168 Wn.2d 204, 205, 227 P.3d 285 (2010). ButKozol instead filed aprose action for declaratory relief in Thurston County Superior Court, alleging among other things that the department violated disciplinary hearingprocedures setforth in chapter 137-28 WAC. He later amended his complaint to name individual defendants and assert additional
causes ofaction, including a claim for damages. The superior court subsequently dismissed all ofKozol's causes ofactions apart from an apparent tort claim for damages, which the court reserved. Before the hearing for presentation ofthe dismissal order, Kozol moved for leaveto file a second amended complaint, dropping his request for monetary damages and adding apetition for a constitutional writ for certiorari under article IV, section 6 ofthe Washington Constitution or a statutory writ ofreviewunder chapter7.16 RCW. The superior court denied Kozol's motion to amend, reasoning that the writ petition was outside the scope ofthepresentationhearing, and dismissed the entire actionwith prejudice. 1 Kozol appealed to Division Two of the Court of Appeals. The court affirmed the dismissal of the declaratory judgment action but reversed denial of Kozol's motionto amendhis complaintto seek a statutory writ ofreview, holding that Kozol could seek such a writ in challenging a prison disciplinary decision not involving loss ofgood conduct credits. The court declined to address whether Kozol

1Kozol was assisted by counsel when he moved to amend his complaint. Counsel withdrew afterthe superior court entered the dismissal order. Kozol has been acting pro se sincethen.No.92190-3 PAGE3
could seek a constitutional writ. See Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 533, 79P.3d 1154 (2003) (constitutional writ will not issue ifother avenues for relief, such as direct appeal or statutory writ, are available). The State filed apetition forreview. DISCUSSION Kozol is entitled to a statutory writ ofreview under RCW 7.16.040 ifhe establishes "(1) that an inferior tribunal (2) exercisingjudicial functions (3) exceeded its jurisdiction or acted illegally, and (4) there is no adequate remedy at law."2 Haynes v. Leavenworth, 118 Wn.2d 237, 244, 821 P.2d 1204 (1992). The Court of Appeals held that Kozol satisfied all four elements. Without addressing all of the statutory elements and whetherKozol metthem, dispositivehere is whether Kozolhas
an "adequateremedyatlaw," makingreliefby statutorywritunavailable. One remedy at law for persons under restraint is the personal restraint petition. RAP 16.3. But the Court ofAppeals held that a personalrestraint petition is not an adequate.remedy in this case because Kozol was not under "restraint" as a result ofhis prison discipline, reasoning that his sanction ofcell confinement did not constitute an "atypical and significanthardship

...inrelationto the ordinaryincidents ofprison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). But a personal restraint petitioner is under "restraint" ifhe is "confined." RAP 16.4(b). Kozol is an inmate "confined" within a state correctional facility. He is

2The statute states: A writ ofreview shall be grantedby any court, except amunicipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded thejurisdiction ofsuch tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course ofthe common law, and there is no appeal, nor in the judgment ofthe court, any plain, speedy and adequate remedy atlaw. RCW 7.16.040.No.92190-3 PAGE4


### thus under "restraint." SeeIn re Pers. Restraintof Dyer, 

### 143 Wn.2d 384, 391, 20 P.3d 907 (2001) (notingthat incarceratedpetitioner was "restrained" as defined under RAP 16.4). Aside from the issue ofrestraint, the most relevant question in determining whether a personal restraint petition is an adequate remedy at law is whether Kozol's restraint is "unlawful" and thus addressable by such a petition. RAP 16.4(a). An inmate's restraint may be unlawful for a number of reasons, including that the "conditions or manner of the restraint of [the] petitioner are in violation of the Constitution of the United States or the Constitution or laws of the State of Washington." RAP 16.4(c)(6). The Court ofAppeals is correctthat aprison disciplinary sanctionthat does not implicate a protected liberty interest is not subject to minimum constitutional due process requirements. Sandin, 

### 515 U.S. at 484; In rePers. Restraintof Granquist, 

### 138 Wn.2d 388, 397-98, 978 P.2d 1083 (1999). And we are mindful that the Washington Administrative Code provision outlining the general purposes ofthe prison discipline procedural guidelines states that those rules "do not create any procedural or substantive rights in any person, including any liberty interests in time credits, levels ofcustody, classification status, or other privileges." WAC 137-28-140. But contrary to that sweeping agency statement, this court has held that a "serious" infraction that results in a loss ofearned early release credit implicates a liberty interest subject to minimum due process protections. Granquist, 

### 138 Wn.2d at 397-98. Though Kozol did not lose early release credits, he was found guilty ofa serious infraction. See 

### WAC 137-25-030 (Category D, 740). Imnates sanctioned for serious infractions are subject to specific disciplinary procedures and safeguards set forth in department regulations. See, e.g., 

### WAC 137-28-285 (inmate's rights to fair and impartial hearing, to be present at hearing, to testify or remain silent, to callNo.92190-3 PAGES
witnesses or present documentary evidence, and to appeal decision), -280(3) (inmate confined to cell pending disciplinary shall have reasonable opportunity to prepare defense), -290(2) (inmate to be given copy ofserious infraction report and advised of rights), -300(1) ("The hearing officer shall ensure that the offender's rights are protected throughout the hearing."), -310(4), (5) (inmate's right to written decision and to appeal to superintendent).3 These administrative rules constitute the laws of Washington for purposes ofdetermining when an inmate is under "unlawfulrestraint"
as defined under RAP 16.4(c)(6). See In re Pers. Restraint ofCashaw, 123 Wn.2d 138, 149 n.6, 866 P.2d 8 (1994). Kozol alleges that the department committed multiple regulatory violations in relation to his disciplinary proceeding, and thus he effectively alleges that his restraint is unlawful, making the personal restraint petition
an appropriateremedy. We further note that althoughthe discipline imposed inthis instance did not result in a loss ofearly release credit-andKozol mayhave already served his tenn of cell confinement-the infraction is a factor a hearing officer may consider when determining the sanction imposed on any later infraction. WAC 137-28-350(3). Thus,
a serious infraction that does not result in the loss ofearly release credit still casts a shadow over an imnate's institutional history. Kozol asserts, for instance, that the disciplinary action here adversely affected his eligibility for preferred housing status. If this factual assertion and the allegations ofregulatory violations are true, Kozol could argue in a personal restraint petition that the manner ofhis restraint violates Washington law. RAP 16.4(c)(6).4 Thus, a personal restraint petition is an adequate remedy at law in this situation, precluding Kozol from seeking reliefby statutory writ

3 The relevant regulations were amended effective January 8, 2016. Though Kozol was sanctioned under the previous versions of these regulations, we cite the current codifications for purposes of this opinion since they generally encompass the same procedural safeguards. 4We offerno opinion as to the merits ofKozol'sclaims.No. 92190-3 PAGE6
ofreview. RCW 7.16.040. The Court ofAppeals erred in holding that Kozol could seekreliefby statutorywrit ofreview. The State's petition for review is granted, and the Court of Appeals 1s reversed. 5

5 Kozol filed a Motion for Appointment of Counsel that we deny, given the disposition by apercuriam opinion.