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KS S.Ct. Affirms Trust Account "Service Fee"
KS S.Ct. Affirms Trust Account "Service Fee"
In two separate cases the Kansas supreme court affirmed a state DOC policy, KAR 44-5-115, which imposes a $1 monthly surcharge on prisoners for administering their prison trust accounts. A state district court held that assessing service fees violated the prisoners' due process rights because the funds were paid to a crime victims compensation fund rather than used to defray the costs of actually administering the trust accounts. The district court also held the policy was illegal because it exceeded the DOC's statutory authority. The district court ordered the fees refunded and enjoined further collection.
The Kansas supreme court reversed and remanded. "We conclude the assessment of a $1 monthly service fee for administering inmate's trust accounts is not violative of the inmates' due process rights." Kansas prisoners receive interest on their trust fund accounts which would offset the fee.
The court held the prisoners lacked standing to challenge the fees being sent to a victim compensation fund rather than to defray the administration of the accounts. "The injured parties are the taxpayers of Kansas" not the prisoners who, presumably, don't pay taxes. The court held that suits to protect the public interest must be brought by public officials rather than citizens. Since it is "public officials" in the DOC who are harming the public interest in this case, it doesn't seem likely much will be done about the matter. See: Weinlood v. Simmons , 936 P.2d 238 (Kan. 1997).
In a second ruling the court held that imposition of the service fee did not violate the ex post facto clause by increasing the punishment of the prisoners and it did not violate their plea agreements. See: Roark v. Graves , 936 P.2d 245 (Kan. 1997).
In two separate cases the Kansas supreme court affirmed a state DOC policy, KAR 44-5-115, which imposes a $1 monthly surcharge on prisoners for administering their prison trust accounts. A state district court held that assessing service fees violated the prisoners' due process rights because the funds were paid to a crime victims compensation fund rather than used to defray the costs of actually administering the trust accounts. The district court also held the policy was illegal because it exceeded the DOC's statutory authority. The district court ordered the fees refunded and enjoined further collection.
The Kansas supreme court reversed and remanded. "We conclude the assessment of a $1 monthly service fee for administering inmate's trust accounts is not violative of the inmates' due process rights." Kansas prisoners receive interest on their trust fund accounts which would offset the fee.
The court held the prisoners lacked standing to challenge the fees being sent to a victim compensation fund rather than to defray the administration of the accounts. "The injured parties are the taxpayers of Kansas" not the prisoners who, presumably, don't pay taxes. The court held that suits to protect the public interest must be brought by public officials rather than citizens. Since it is "public officials" in the DOC who are harming the public interest in this case, it doesn't seem likely much will be done about the matter. See: Weinlood v. Simmons , 936 P.2d 238 (Kan. 1997).
In a second ruling the court held that imposition of the service fee did not violate the ex post facto clause by increasing the punishment of the prisoners and it did not violate their plea agreements. See: Roark v. Graves , 936 P.2d 245 (Kan. 1997).
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Related legal cases
Weinlood v. Simmons
| Year | 1997 |
|---|---|
| Cite | 936 P.2d 238 (KS 1997) |
| Level | State Supreme Court |
WEINLOOD v. SIMMONS, 262 Kan. 259, 935 P.2d 238 (Kan. 04/18/1997)
[1] Supreme Court of Kansas
[2] 77, 916
[3] 262 Kan. 259, 935 P.2d 238, 1997
[4] April 18, 1997.
[5] RONALD WEINLOOD, et al., Appellees,
v.
CHARLES SIMMONS, Individually, and in His Capacity as Secretary of Corrections, Appellant.
[6] Edward F. Britton, Jr., of Kansas Department of Corrections, argued the cause and was on the brief for appellant. Stephen W. Kessler, Director, Legal Services for Prisoners, Inc., of Topeka, argued the cause and was on the brief for appellee.
[7] The opinion of the court was delivered by
[8] This is a 42 U.S.C. § 1983 (1994) action by certain inmates of the Hutchinson Correctional Facility against Charles Simmons, Secretary of the Kansas Department of Corrections, challenging the assessment of service fees against them pursuant to K.A.R. 44-5-115 (1996 Supp.) Defendant Secretary appeals from the district court's judgment that:
[9] 1. the assessment of service fees for administering inmates' trust accounts was violative of the inmates' due process rights because the fees were paid to the
[262 Kan. 260]
crime victims compensation fund rather than used to defray costs of administration of the accounts;
[10] 2. K.A.R. 44-5-115(a) (1996 Supp.) exceeded the statutory authority granted in K.S.A. 1996 Supp. 75-52,139 when it ordered the fees to be paid to the crime victims compensation fund;
3. ordered the refunding of the service fees paid after the action was filed; and
4. granted a permanent injunction against the future collection of these service fees.
[11] The facts underlying this action are not disputed, and the questions presented are primarily questions of law over which we have unlimited review. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
[12] The statute at issue is K.S.A. 1996 Supp. 75-52,139, enacted in 1994 (L. 1994, ch. 227, § 10), which provides:
"The secretary of corrections is hereby authorized to adopt rules and regulations under which offenders in the secretary's custody may be assessed fees for various services provided to offenders and for deductions of payment to the crime victims compensation fund."
[13] Based upon this statute, the Secretary of Corrections promulgated K.A.R. 44-5-115 (1996 Supp.), effective January 3, 1995, which provides:
[14] "(a) Each inmate in the custody of the secretary of corrections shall be assessed a charge of one dollar each payroll period, not to exceed $12.00 per year, as a fee for the facility administering the inmate's trust account. The facility shall be authorized to transfer the fee from each inmate's account from the balance existing on the first of each month. In the event an inmate has insufficient funds on the first of the month to cover this fee, the fee shall be transferred as soon as the inmate has sufficient funds in the account to cover the fee. All funds received by the facility pursuant to this provision shall be paid on a quarterly basis to the crime victims compensation fund.
[15] "(b) Every offender under the department's parole supervision, conditional release supervision, post-release supervision, and interstate compact parole and probation supervision in Kansas shall be assessed a supervision service fee of a maximum of 25 dollars per month. This fee shall be paid by the offenders to the department's designated collection agent(s). Payment of the fee shall be a condition of supervision. All fees shall be paid as directed by field service order and as instructed by the supervising parole officer. A portion of the supervision service fees collected shall be paid to the designated collection agent(s) according to the current service contract, if applicable. Twenty-five percent of the remaining amount collected shall be paid on an at least quarterly basis to the crime victims
[262 Kan. 261]
compensation fund. The remaining balance shall be paid to the department's general fees fund for the department's purchase or lease of enhanced parole supervision services or equipment such as electronic monitoring, drug screening, and surveillance services. The department shall establish criteria for the identification of indigent offenders who shall be exempt from this subsection of the regulation. Fees as authorized by subsection (d) of this regulation shall not be considered a portion of the monthly service fee.
[16] "(c) Each inmate in the custody of the secretary of corrections shall be assessed a fee of two dollars ($2.00) for each primary visit initiated by the inmate to an institutional sick call. A primary visit is the initial visit for a specific complaint or condition. Inmates shall not be charged for medical visits initiated by medical or mental health staff, institution intake screenings, yearly physical examinations, reception evaluations, evaluations requested by the Kansas Parole Board, referrals to a consultant physician, infirmary care, emergency treatment, mental health group sessions, facility requested mental health evaluations, or follow-up visits initiated by medical staff. No inmate shall be refused medical treatment for financial reasons. In the event an inmate has insufficient funds to cover the medical fee, the fee shall be transferred as soon as the inmate has sufficient funds in the account to cover the balance of the fee.
"(d) An offender shall be assessed a fee for each urinalysis test administered to them for the purpose of determining use of illegal substances which has a positive result. The amount of the fee shall be adjusted from time to time to reflect the actual cost of administering such tests, including staff participation."
[17] In this action, plaintiffs challenged subsection (a) and (c). The district court found that the medical fees for inmate-initiated medical visits, K.A.R. 44-5-115(c) (1996 Supp.), did not constitute cruel and unusual punishment in violation of plaintiffs' constitutional rights. No appeal has been taken from this determination and it is not before us. The appeal herein concerns only subsection (a).
[18] It is clear from the district court's memorandum decision that it had no problem with the basic concept of a $1 per month fee for administration of an inmate's account. If the fees were going to the State General Fund to defray the cost of administering the accounts, the district court would have upheld the imposition of the fee. The district court held that the requirement in the regulation of paying the fees collected to the crime victims compensation fund rendered the fee collection violative of the plaintiffs' due process rights and also exceeded the authority granted by K.S.A. 1996 Supp. 75-52,139. The plaintiffs' complaints relative to trust account fees also focus on the use of the fees collected (payment to the
[262 Kan. 262]
crime victims compensation fund) rather than the right to collect fees for services provided or the reasonableness of the fees imposed.
[19] We believe it is appropriate to split consideration of the propriety of the charge for administration of the trust accounts from consideration of the propriety of the payment of the fees to the crime victims compensation fund. See K.S.A. 74-7301 et seq. for fund description and operation.
[20] The operation of the trust accounts was not a controverted fact and is summarized in the following affidavit admitted into evidence herein:
"AFFIDAVIT
"State of Kansas ) ) ss: County of Reno )
"I, Irlene Dick, Business Manager at the Hutchinson Correctional Facility (HCF), for the Kansas Department of Corrections (KDOC), being duly sworn according to law upon my oath, do hereby depose and state as follows:
"Inmate participation in the inmate trust fund account is mandatory under almost all circumstances. In the event the inmate enters the facility without any funds, receives no money during his stay at the Hutchinson Correctional Facility, and has absolutely no income while he is here, there would be no service charge assessed. However, it goes without saying, that the inmate would be violating the facility's rules concerning participation in programs and would be penalized in that way by having his release time set back.
"The inmates have the option, pursuant to K.A.R. 44-5-103, to engage in transactions with any financial institution, upon written authorization of the principal administrator of the Hutchinson Correctional Facility.
"The inmates who provide valid social security numbers receive interest at the passbook rate for whatever monies they have in their account.
"The variety of services which are provided for the benefit of the inmate include, but are not limited to:
1. free monthly statement, plus unlimited extra free copies;
2. transfer of money to new location;
3. balance of account;
4. copies of checks;
5. posting of earned interest;
6. account information, i.e., whether checks have cleared;
7. write their checks, i.e., money to family, subscriptions, allowable items;
8. process individual deposits and issue receipts;
[21] 9. make their loan payments (made from IBF);
[262 Kan. 263]
[22] 10. mail all payments;
[23] 11. make their TV lease payments;
[24] 12. make all donations to religious groups;
[25] 13. process all postage withdrawals;
[26] 14. pay all Jaycees membership dues;
[27] 15. handle special events, i.e., picture project, Christmas videos, holiday packages;
16. process canteen withdrawals;
17. process special requests, i.e., shoes, sweats, electronics;
18. special handling for handicrafts;
19. process clemency publicity advertisements;
20. maintain separate mandatory savings; and
21. post all incentive pay.
"The administrative fee does not begin to pay the total cost of performing all of these services, but it does represent contribution by the inmates to the overall cost."
[28] The district court likened the trust account fee to a monthly checking account fee charged by a bank. It is clear that considerably more than just the servicing of a checking account is involved. The inmates live in a cashless society where all income and expenditures are channeled through their trust accounts. The amount of funds in the average inmate's account may be small, but the number of transactions to be handled and accounted for is large. There is no claim herein that a $1 per month fee to help defray the cost of administering an inmate's trust account is an unreasonable charge, and the district court did not find that it was.
[29] "The Fourteenth Amendment of the United States Constitution prohibits a state from depriving `any person of life, liberty, or property, without due process of law.'
. . . .
"`The concept of due process is flexible in that "not all situations calling for procedural safeguards call for the same kind of procedure.'" In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 370, 736 P.2d 923 (1987); see Darling v. Kansas Water Office, 245 Kan. 45, 50, 774 P.2d 941 (1989)." In re Marriage of Soden, 251 Kan. 225, 234-35, 834 P.2d 358, cert. denied 506 U.S. 1001 (1992).
[30] "When a statute is attacked as violative of due process, the test is whether the legislative means selected has a real and substantial relation to the objective sought. This rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community."
[262 Kan. 264]
Chiles v. State, 254 Kan. 888, Syl. ¶ 11, 869 P.2d 707, cert. denied 130 L.Ed.2d 88 (1994).
[31] Again, it should be noted that plaintiffs do not contend that the State is prohibited by the Due Process Clause of the United States Constitution from charging $1 per month for administering each inmate's trust account. The use of the fees collected is where the due process argument is aimed as it is likened to ordering restitution without an opportunity to be heard.
[32] K.S.A. 75-5201 charges the Department of Corrections, inter alia, to return inmates "to private life in the communities of the state with improved work habits, education, mental and physical health and attitudes necessary to become and remain useful and self-reliant citizens . . . [and] to rehabilitate, train, treat, educate and prepare persons convicted of felony in this state for entry or reentry into the social and economic system of the community . . . ."
[33] In testifying before the Senate Judiciary Committee hearing on March 18, 1994, on H.B. 2832, which was ultimately amended to include specific language of K.S.A. 1996 Supp. 75-52,139, defendant Secretary stated, in pertinent part:
"Assessing fees to offenders is based on a belief that offenders should be accountable for their actions, and contributing to the costs of incarceration or supervision are important components of establishing that accountability."
[34] Prison officials are given wide latitude in matters concerning the administration of correctional facilities. Such discretion should not be interfered with by the court in the absence of abuse or unless exercised unlawfully, arbitrarily, or capriciously. See Breier v. Raines, 221 Kan. 439, 559 P.2d 813 (1977); Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972).
[35] When an inmate challenges a prison regulation as impinging on the inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. LeVier v. Nelson, 21 Kan. App. 2d 172, 897 P.2d 188 (1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 104 L.Ed.2d 459, 109 S. Ct. 1874 [1989], and Turner v. Safley, 482 U.S. 78, 96 L.Ed.2d 64, 107 S. Ct. 2254 [1987]).
[262 Kan. 265]
[36] It should be further noted that inmate grievance procedures are available to all inmates in each correctional facility. See K.A.R. 44-15-101a. These extensive procedures (K.A.R. 44-15-101 et seq.) are applicable to a broad range of matters directly affecting the inmate, including complaints by inmates regarding policies and conditions within the jurisdiction of the institution of the Department of Corrections. K.A.R. 44-15-101a(d)(1)(A). If the Secretary incorrectly assesses fees to an inmate trust account, plaintiffs have procedures available to them to rectify such errors. These procedures provide the due process flexibility noted above. See In re Marriage of Soden, 251 Kan. at 234-35.
[37] Courts> in other jurisdictions have upheld a state's right to require inmates to reimburse the state for their keep and maintenance. See Ervin v. Blackwell, 733 F.2d 1282 (8th Cir. 1984) (no claim of entitlement to full work release salary; maintenance cost reimbursement not arbitrary state action demanding due process protection); Scott v. Angelone, 771 F. Supp. 1064, 1067-68 (D. Nev. 1991), aff'd 980 F.2d 738 (9th Cir. 1992) (although inmate interests in funds in trust account are protected property interests, predeprivation hearing not required before deducting medical charges); Hogan v. Arizona Board of Pardons & Paroles, 108 Ariz. 472, 475, 501 P.2d 944 (1972) (state may confiscate payroll checks of work furlough prisoners to help defray costs of operating program based on state statute expressly providing such authority); Burns v. State, 303 Ark. 64, 66-67, 793 S.W.2d 779 (1990) (law requiring forfeiture of prisoner's estate for reimbursement of costs of prisoner's care not due process violation); Treasury Dep't v. Turner, 110 Mich. App. 228, 312 N.W.2d 418 (1981) (earned contributions to pension fund may be seized by prison officials under state statute imposing obligation of prisoner to pay for his or her keep and maintenance); Auditor General v. Olezniczak, 302 Mich. 336, 4 N.W.2d 679 (1942) (prisoner's statutory obligation to pay for his or her maintenance, if there is a sufficient estate, is civil rather than criminal in nature; not unconstitutional as retroactive legislation in violation of due process law); Cumbey v. State, 699 P.2d 1094, 1096-98 (Okla.), cert. denied 474 U.S. 838 (1985)
[262 Kan. 266]
(prison reimbursement provisions held constitutional; monetary credits awarded to inmate accounts are not wages).
[38] We conclude the assessment of a $1 monthly service fee for administering inmates' trust accounts is not violative of the inmates' due process rights.
[39] We turn now to the second prong of this issue the propriety of paying the trustee account administration fees to the crime victims compensation fund. As will be recalled, the district court held that the portion of the regulation that required the payment of the fees to the crime victims compensation fund was: (1) violative of plaintiffs' due process rights and (2) exceeded the statute's grant of authority.
[40] H.B. 2832, which ultimately birthed K.S.A. 1996 Supp. 75-52,139, was originally introduced to cut down on frivolous lawsuits by inmates. The bill was amended many times and, in final form, bore little resemblance to its original form.
[41] The district court found that the regulation's requirement that the fees be paid to the crime victims compensation fund rather than be used to defray the costs of administration of the accounts exceeded the authority granted by the statute, K.S.A. 1996 Supp. 75-52,139. There may be merit in this position, tracing the many amendments of the bill as it proceeded to enactment. The problem with this contention in the context of this litigation is that if the fees collected are being improperly sent to the crime victims compensation fund rather than being used to defray the costs of operation of the prison, the injured parties are the taxpayers of Kansas. The amount of the fee charged for services rendered is unaffected by the use to be made of the fees collected. We have previously held that the assessment of service charges for administrating the trust accounts is not violative of plaintiffs' due process rights. Under these circumstances, can the plaintiff inmates base a 1983 action on the use to which the funds are put or do they otherwise have standing to challenge the use made of the fees? We believe not.
[42] 42 U.S.C. § 1983 (1994) provides:
[43] "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes
[262 Kan. 267]
to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress."
[44] Possible improper expenditure of service fees properly assessed and collected is not violative of 42 U.S.C. § 1983. Further, even if this were not a § 1983 action, plaintiffs have no standing to bring an action seeking to enjoin a public official relative to the utilization of the fees herein.
[45] In Haines v. Rural High School Dist. No. 3, 171 Kan. 271, Syl. ¶¶ 1, 2, 232 P.2d 437 (1951), we held:
"An individual is not a proper plaintiff and cannot maintain an action for injunctive relief against abuse of power by municipal officers unless he alleges and subsequently proves that his tax burdens will be increased. Such actions must be prosecuted by the state or one of its officers charged with the responsibility of scrutinizing the acts of public officers and board."
"In order for an individual to maintain an action of the character above mentioned he must plead and prove that he has sustained special damage different in kind from that of the public generally."
[46] Generally, an injunction will not lie at the suit of a private person to protect the public interests. Ruthstrom v. Peterson, 72 Kan. 679, 83 P. 825 (1905); School District v. Shadduck, 25 Kan. 467, 478 (1881); see Boyer v. Southwestern Bell Telephone Company, 252 F. Supp. 1 (D. Kan. 1966). A plaintiff must have a special private interest distinct from that of the public at large in order to bring an actionable claim. Winters v. Kansas Hospital Service Ass'n, Inc., 1 Kan. App. 2d 64, 69, 562 P.2d 98 (1977); see Watson v. City of Topeka, 194 Kan. 585, 400 P.2d 689 (1965); Foster v. City of Topeka, 112 Kan. 253, 210 P. 341 (1922).
[47] As we have held above, plaintiffs here have no private interests distinct from that of the public at large. Interests to protect the public at large must be brought by the proper public official.
[48] We conclude the district court erred in determining:
1. The assessment of the $1 per month fee for administering the inmates' trust accounts was violative of plaintiffs' due process rights, based upon the utilization of the fees collected;
[49] 2. refunds of fees previously paid should be made; and
[262 Kan. 268]
[50] 3. defendant Secretary should be permanently enjoined from collecting such fees in the future.
[51] In their brief, plaintiffs argue the fee for administering the trust accounts is violative of the Ex Post Facto Clause of the United States Constitution (U.S. Const., art. I, § 10). This issue is not properly before us in this case, but has been determined adversely to the plaintiffs' position in Roark v. Graves, 262 Kan. 194, 936 P.2d 245 (1997).
[52] The judgment of the district court is reversed, and the case is remanded with directions to enter judgment in favor of the defendant in accordance with this opinion.
[262 Kan. 269]
[1] Supreme Court of Kansas
[2] 77, 916
[3] 262 Kan. 259, 935 P.2d 238, 1997
[4] April 18, 1997.
[5] RONALD WEINLOOD, et al., Appellees,
v.
CHARLES SIMMONS, Individually, and in His Capacity as Secretary of Corrections, Appellant.
[6] Edward F. Britton, Jr., of Kansas Department of Corrections, argued the cause and was on the brief for appellant. Stephen W. Kessler, Director, Legal Services for Prisoners, Inc., of Topeka, argued the cause and was on the brief for appellee.
[7] The opinion of the court was delivered by
[8] This is a 42 U.S.C. § 1983 (1994) action by certain inmates of the Hutchinson Correctional Facility against Charles Simmons, Secretary of the Kansas Department of Corrections, challenging the assessment of service fees against them pursuant to K.A.R. 44-5-115 (1996 Supp.) Defendant Secretary appeals from the district court's judgment that:
[9] 1. the assessment of service fees for administering inmates' trust accounts was violative of the inmates' due process rights because the fees were paid to the
[262 Kan. 260]
crime victims compensation fund rather than used to defray costs of administration of the accounts;
[10] 2. K.A.R. 44-5-115(a) (1996 Supp.) exceeded the statutory authority granted in K.S.A. 1996 Supp. 75-52,139 when it ordered the fees to be paid to the crime victims compensation fund;
3. ordered the refunding of the service fees paid after the action was filed; and
4. granted a permanent injunction against the future collection of these service fees.
[11] The facts underlying this action are not disputed, and the questions presented are primarily questions of law over which we have unlimited review. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
[12] The statute at issue is K.S.A. 1996 Supp. 75-52,139, enacted in 1994 (L. 1994, ch. 227, § 10), which provides:
"The secretary of corrections is hereby authorized to adopt rules and regulations under which offenders in the secretary's custody may be assessed fees for various services provided to offenders and for deductions of payment to the crime victims compensation fund."
[13] Based upon this statute, the Secretary of Corrections promulgated K.A.R. 44-5-115 (1996 Supp.), effective January 3, 1995, which provides:
[14] "(a) Each inmate in the custody of the secretary of corrections shall be assessed a charge of one dollar each payroll period, not to exceed $12.00 per year, as a fee for the facility administering the inmate's trust account. The facility shall be authorized to transfer the fee from each inmate's account from the balance existing on the first of each month. In the event an inmate has insufficient funds on the first of the month to cover this fee, the fee shall be transferred as soon as the inmate has sufficient funds in the account to cover the fee. All funds received by the facility pursuant to this provision shall be paid on a quarterly basis to the crime victims compensation fund.
[15] "(b) Every offender under the department's parole supervision, conditional release supervision, post-release supervision, and interstate compact parole and probation supervision in Kansas shall be assessed a supervision service fee of a maximum of 25 dollars per month. This fee shall be paid by the offenders to the department's designated collection agent(s). Payment of the fee shall be a condition of supervision. All fees shall be paid as directed by field service order and as instructed by the supervising parole officer. A portion of the supervision service fees collected shall be paid to the designated collection agent(s) according to the current service contract, if applicable. Twenty-five percent of the remaining amount collected shall be paid on an at least quarterly basis to the crime victims
[262 Kan. 261]
compensation fund. The remaining balance shall be paid to the department's general fees fund for the department's purchase or lease of enhanced parole supervision services or equipment such as electronic monitoring, drug screening, and surveillance services. The department shall establish criteria for the identification of indigent offenders who shall be exempt from this subsection of the regulation. Fees as authorized by subsection (d) of this regulation shall not be considered a portion of the monthly service fee.
[16] "(c) Each inmate in the custody of the secretary of corrections shall be assessed a fee of two dollars ($2.00) for each primary visit initiated by the inmate to an institutional sick call. A primary visit is the initial visit for a specific complaint or condition. Inmates shall not be charged for medical visits initiated by medical or mental health staff, institution intake screenings, yearly physical examinations, reception evaluations, evaluations requested by the Kansas Parole Board, referrals to a consultant physician, infirmary care, emergency treatment, mental health group sessions, facility requested mental health evaluations, or follow-up visits initiated by medical staff. No inmate shall be refused medical treatment for financial reasons. In the event an inmate has insufficient funds to cover the medical fee, the fee shall be transferred as soon as the inmate has sufficient funds in the account to cover the balance of the fee.
"(d) An offender shall be assessed a fee for each urinalysis test administered to them for the purpose of determining use of illegal substances which has a positive result. The amount of the fee shall be adjusted from time to time to reflect the actual cost of administering such tests, including staff participation."
[17] In this action, plaintiffs challenged subsection (a) and (c). The district court found that the medical fees for inmate-initiated medical visits, K.A.R. 44-5-115(c) (1996 Supp.), did not constitute cruel and unusual punishment in violation of plaintiffs' constitutional rights. No appeal has been taken from this determination and it is not before us. The appeal herein concerns only subsection (a).
[18] It is clear from the district court's memorandum decision that it had no problem with the basic concept of a $1 per month fee for administration of an inmate's account. If the fees were going to the State General Fund to defray the cost of administering the accounts, the district court would have upheld the imposition of the fee. The district court held that the requirement in the regulation of paying the fees collected to the crime victims compensation fund rendered the fee collection violative of the plaintiffs' due process rights and also exceeded the authority granted by K.S.A. 1996 Supp. 75-52,139. The plaintiffs' complaints relative to trust account fees also focus on the use of the fees collected (payment to the
[262 Kan. 262]
crime victims compensation fund) rather than the right to collect fees for services provided or the reasonableness of the fees imposed.
[19] We believe it is appropriate to split consideration of the propriety of the charge for administration of the trust accounts from consideration of the propriety of the payment of the fees to the crime victims compensation fund. See K.S.A. 74-7301 et seq. for fund description and operation.
[20] The operation of the trust accounts was not a controverted fact and is summarized in the following affidavit admitted into evidence herein:
"AFFIDAVIT
"State of Kansas ) ) ss: County of Reno )
"I, Irlene Dick, Business Manager at the Hutchinson Correctional Facility (HCF), for the Kansas Department of Corrections (KDOC), being duly sworn according to law upon my oath, do hereby depose and state as follows:
"Inmate participation in the inmate trust fund account is mandatory under almost all circumstances. In the event the inmate enters the facility without any funds, receives no money during his stay at the Hutchinson Correctional Facility, and has absolutely no income while he is here, there would be no service charge assessed. However, it goes without saying, that the inmate would be violating the facility's rules concerning participation in programs and would be penalized in that way by having his release time set back.
"The inmates have the option, pursuant to K.A.R. 44-5-103, to engage in transactions with any financial institution, upon written authorization of the principal administrator of the Hutchinson Correctional Facility.
"The inmates who provide valid social security numbers receive interest at the passbook rate for whatever monies they have in their account.
"The variety of services which are provided for the benefit of the inmate include, but are not limited to:
1. free monthly statement, plus unlimited extra free copies;
2. transfer of money to new location;
3. balance of account;
4. copies of checks;
5. posting of earned interest;
6. account information, i.e., whether checks have cleared;
7. write their checks, i.e., money to family, subscriptions, allowable items;
8. process individual deposits and issue receipts;
[21] 9. make their loan payments (made from IBF);
[262 Kan. 263]
[22] 10. mail all payments;
[23] 11. make their TV lease payments;
[24] 12. make all donations to religious groups;
[25] 13. process all postage withdrawals;
[26] 14. pay all Jaycees membership dues;
[27] 15. handle special events, i.e., picture project, Christmas videos, holiday packages;
16. process canteen withdrawals;
17. process special requests, i.e., shoes, sweats, electronics;
18. special handling for handicrafts;
19. process clemency publicity advertisements;
20. maintain separate mandatory savings; and
21. post all incentive pay.
"The administrative fee does not begin to pay the total cost of performing all of these services, but it does represent contribution by the inmates to the overall cost."
[28] The district court likened the trust account fee to a monthly checking account fee charged by a bank. It is clear that considerably more than just the servicing of a checking account is involved. The inmates live in a cashless society where all income and expenditures are channeled through their trust accounts. The amount of funds in the average inmate's account may be small, but the number of transactions to be handled and accounted for is large. There is no claim herein that a $1 per month fee to help defray the cost of administering an inmate's trust account is an unreasonable charge, and the district court did not find that it was.
[29] "The Fourteenth Amendment of the United States Constitution prohibits a state from depriving `any person of life, liberty, or property, without due process of law.'
. . . .
"`The concept of due process is flexible in that "not all situations calling for procedural safeguards call for the same kind of procedure.'" In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 370, 736 P.2d 923 (1987); see Darling v. Kansas Water Office, 245 Kan. 45, 50, 774 P.2d 941 (1989)." In re Marriage of Soden, 251 Kan. 225, 234-35, 834 P.2d 358, cert. denied 506 U.S. 1001 (1992).
[30] "When a statute is attacked as violative of due process, the test is whether the legislative means selected has a real and substantial relation to the objective sought. This rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community."
[262 Kan. 264]
Chiles v. State, 254 Kan. 888, Syl. ¶ 11, 869 P.2d 707, cert. denied 130 L.Ed.2d 88 (1994).
[31] Again, it should be noted that plaintiffs do not contend that the State is prohibited by the Due Process Clause of the United States Constitution from charging $1 per month for administering each inmate's trust account. The use of the fees collected is where the due process argument is aimed as it is likened to ordering restitution without an opportunity to be heard.
[32] K.S.A. 75-5201 charges the Department of Corrections, inter alia, to return inmates "to private life in the communities of the state with improved work habits, education, mental and physical health and attitudes necessary to become and remain useful and self-reliant citizens . . . [and] to rehabilitate, train, treat, educate and prepare persons convicted of felony in this state for entry or reentry into the social and economic system of the community . . . ."
[33] In testifying before the Senate Judiciary Committee hearing on March 18, 1994, on H.B. 2832, which was ultimately amended to include specific language of K.S.A. 1996 Supp. 75-52,139, defendant Secretary stated, in pertinent part:
"Assessing fees to offenders is based on a belief that offenders should be accountable for their actions, and contributing to the costs of incarceration or supervision are important components of establishing that accountability."
[34] Prison officials are given wide latitude in matters concerning the administration of correctional facilities. Such discretion should not be interfered with by the court in the absence of abuse or unless exercised unlawfully, arbitrarily, or capriciously. See Breier v. Raines, 221 Kan. 439, 559 P.2d 813 (1977); Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972).
[35] When an inmate challenges a prison regulation as impinging on the inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. LeVier v. Nelson, 21 Kan. App. 2d 172, 897 P.2d 188 (1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 104 L.Ed.2d 459, 109 S. Ct. 1874 [1989], and Turner v. Safley, 482 U.S. 78, 96 L.Ed.2d 64, 107 S. Ct. 2254 [1987]).
[262 Kan. 265]
[36] It should be further noted that inmate grievance procedures are available to all inmates in each correctional facility. See K.A.R. 44-15-101a. These extensive procedures (K.A.R. 44-15-101 et seq.) are applicable to a broad range of matters directly affecting the inmate, including complaints by inmates regarding policies and conditions within the jurisdiction of the institution of the Department of Corrections. K.A.R. 44-15-101a(d)(1)(A). If the Secretary incorrectly assesses fees to an inmate trust account, plaintiffs have procedures available to them to rectify such errors. These procedures provide the due process flexibility noted above. See In re Marriage of Soden, 251 Kan. at 234-35.
[37] Courts> in other jurisdictions have upheld a state's right to require inmates to reimburse the state for their keep and maintenance. See Ervin v. Blackwell, 733 F.2d 1282 (8th Cir. 1984) (no claim of entitlement to full work release salary; maintenance cost reimbursement not arbitrary state action demanding due process protection); Scott v. Angelone, 771 F. Supp. 1064, 1067-68 (D. Nev. 1991), aff'd 980 F.2d 738 (9th Cir. 1992) (although inmate interests in funds in trust account are protected property interests, predeprivation hearing not required before deducting medical charges); Hogan v. Arizona Board of Pardons & Paroles, 108 Ariz. 472, 475, 501 P.2d 944 (1972) (state may confiscate payroll checks of work furlough prisoners to help defray costs of operating program based on state statute expressly providing such authority); Burns v. State, 303 Ark. 64, 66-67, 793 S.W.2d 779 (1990) (law requiring forfeiture of prisoner's estate for reimbursement of costs of prisoner's care not due process violation); Treasury Dep't v. Turner, 110 Mich. App. 228, 312 N.W.2d 418 (1981) (earned contributions to pension fund may be seized by prison officials under state statute imposing obligation of prisoner to pay for his or her keep and maintenance); Auditor General v. Olezniczak, 302 Mich. 336, 4 N.W.2d 679 (1942) (prisoner's statutory obligation to pay for his or her maintenance, if there is a sufficient estate, is civil rather than criminal in nature; not unconstitutional as retroactive legislation in violation of due process law); Cumbey v. State, 699 P.2d 1094, 1096-98 (Okla.), cert. denied 474 U.S. 838 (1985)
[262 Kan. 266]
(prison reimbursement provisions held constitutional; monetary credits awarded to inmate accounts are not wages).
[38] We conclude the assessment of a $1 monthly service fee for administering inmates' trust accounts is not violative of the inmates' due process rights.
[39] We turn now to the second prong of this issue the propriety of paying the trustee account administration fees to the crime victims compensation fund. As will be recalled, the district court held that the portion of the regulation that required the payment of the fees to the crime victims compensation fund was: (1) violative of plaintiffs' due process rights and (2) exceeded the statute's grant of authority.
[40] H.B. 2832, which ultimately birthed K.S.A. 1996 Supp. 75-52,139, was originally introduced to cut down on frivolous lawsuits by inmates. The bill was amended many times and, in final form, bore little resemblance to its original form.
[41] The district court found that the regulation's requirement that the fees be paid to the crime victims compensation fund rather than be used to defray the costs of administration of the accounts exceeded the authority granted by the statute, K.S.A. 1996 Supp. 75-52,139. There may be merit in this position, tracing the many amendments of the bill as it proceeded to enactment. The problem with this contention in the context of this litigation is that if the fees collected are being improperly sent to the crime victims compensation fund rather than being used to defray the costs of operation of the prison, the injured parties are the taxpayers of Kansas. The amount of the fee charged for services rendered is unaffected by the use to be made of the fees collected. We have previously held that the assessment of service charges for administrating the trust accounts is not violative of plaintiffs' due process rights. Under these circumstances, can the plaintiff inmates base a 1983 action on the use to which the funds are put or do they otherwise have standing to challenge the use made of the fees? We believe not.
[42] 42 U.S.C. § 1983 (1994) provides:
[43] "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes
[262 Kan. 267]
to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress."
[44] Possible improper expenditure of service fees properly assessed and collected is not violative of 42 U.S.C. § 1983. Further, even if this were not a § 1983 action, plaintiffs have no standing to bring an action seeking to enjoin a public official relative to the utilization of the fees herein.
[45] In Haines v. Rural High School Dist. No. 3, 171 Kan. 271, Syl. ¶¶ 1, 2, 232 P.2d 437 (1951), we held:
"An individual is not a proper plaintiff and cannot maintain an action for injunctive relief against abuse of power by municipal officers unless he alleges and subsequently proves that his tax burdens will be increased. Such actions must be prosecuted by the state or one of its officers charged with the responsibility of scrutinizing the acts of public officers and board."
"In order for an individual to maintain an action of the character above mentioned he must plead and prove that he has sustained special damage different in kind from that of the public generally."
[46] Generally, an injunction will not lie at the suit of a private person to protect the public interests. Ruthstrom v. Peterson, 72 Kan. 679, 83 P. 825 (1905); School District v. Shadduck, 25 Kan. 467, 478 (1881); see Boyer v. Southwestern Bell Telephone Company, 252 F. Supp. 1 (D. Kan. 1966). A plaintiff must have a special private interest distinct from that of the public at large in order to bring an actionable claim. Winters v. Kansas Hospital Service Ass'n, Inc., 1 Kan. App. 2d 64, 69, 562 P.2d 98 (1977); see Watson v. City of Topeka, 194 Kan. 585, 400 P.2d 689 (1965); Foster v. City of Topeka, 112 Kan. 253, 210 P. 341 (1922).
[47] As we have held above, plaintiffs here have no private interests distinct from that of the public at large. Interests to protect the public at large must be brought by the proper public official.
[48] We conclude the district court erred in determining:
1. The assessment of the $1 per month fee for administering the inmates' trust accounts was violative of plaintiffs' due process rights, based upon the utilization of the fees collected;
[49] 2. refunds of fees previously paid should be made; and
[262 Kan. 268]
[50] 3. defendant Secretary should be permanently enjoined from collecting such fees in the future.
[51] In their brief, plaintiffs argue the fee for administering the trust accounts is violative of the Ex Post Facto Clause of the United States Constitution (U.S. Const., art. I, § 10). This issue is not properly before us in this case, but has been determined adversely to the plaintiffs' position in Roark v. Graves, 262 Kan. 194, 936 P.2d 245 (1997).
[52] The judgment of the district court is reversed, and the case is remanded with directions to enter judgment in favor of the defendant in accordance with this opinion.
[262 Kan. 269]
Roark v. Graves
| Year | 1997 |
|---|---|
| Cite | 936 P.2d 245 (Kan. 1997) |
| Level | State Supreme Court |
ROARK v. GRAVES, 262 Kan. 194, 936 P.2d 245 (Kan. 04/18/1997)
[1] Supreme Court of Kansas
[2] 76, 511
[3] 262 Kan. 194, 936 P.2d 245, 1997.KS
[4] April 18, 1997.
[5] STANLEY D. ROARK and/or NOEL LOGAN, Appellants,
v.
BILL GRAVES, GOVERNOR OF KANSAS, et al., Appellees.
[6] Paula D. Hofaker, of Logan, argued the cause and was on the brief for appellants. Robert E. Wasinger, of Kansas Department of Corrections, Norton Correctional Facility, argued the cause and was on the brief for appellee.
[7] The opinion of the court was delivered by
[8] This is a 42 U.S.C. § 1983 (1994) action by certain inmates of the Norton Correctional Facility challenging the assessment of monthly service fees against them for the administration of their trust accounts pursuant to K.A.R. 44-5-115 (a) (1996 Supp.) on the grounds that it is violative of their due process rights and the Ex Post Facto Clause of the United States Constitution. The district court upheld the assessment of the fees, and plaintiffs appeal therefrom.
[9] The statute from which the regulation arises is K.S.A. 1996 Supp. 75-52,139, passed by the legislature in 1994 (L. 1994, ch. 227, § 10). It provides:
"The secretary of corrections is hereby authorized to adopt rules and regulations under which offenders in the secretary's custody may be assessed fees for various services provided to offenders and for deductions for payment to the crime victims compensation fund."
[10] From the statute, the Secretary of Corrections promulgated K.A.R. 44-5-115 (1996 Supp.), the pertinent part of which provides:
[262 Kan. 195]
[11] "(a) Each inmate in the custody of the secretary of corrections shall be assessed a charge of one dollar each payroll period, not to exceed $12.00 per year, as a fee for the facility administering the inmate's trust account. The facility shall be authorized to transfer the fee from each inmate's account from the balance existing on the first of each month. In the event an inmate has insufficient funds on the first of the month to cover this fee, the fee shall be transferred as soon as the inmate has sufficient funds in the account to cover the fee. All funds received by the facility pursuant to this provision shall be paid on a quarterly basis to the crime victims compensation fund."
[12] Plaintiffs contend that this regulation is violative of their due process rights under the United States Constitution by virtue of its requirement that the fees collected are to be paid to the crime victims compensation fund as opposed to being used to defray the costs of administering the trust accounts. This identical issue has been determined adversely to plaintiffs herein in Weinlood v. Simmons, 262 Kan. 259, 936 P.2d 238 (1997), which case is controlling on this issue.
[13] Plaintiffs next argue that this regulation violates the Ex Post Facto Clause of the United States Constitution by retroactively imposing punishment on inmates after the commission of their crimes.
[14] "`The United States Constitution prohibits the legislative enactment of any ex post facto law. U.S.C.onst., art. I, § 10. Two critical elements must be present for a criminal or penal law to be ex post facto: It must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. A criminal law disadvantages the offender if it punishes an act not punishable when committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters the legal rules of evidence.'" State v. LaMunyon, 21 Kan. App. 2d 281, 285, 898 P.2d 1182 (1995), aff'd 259 Kan. 54, 911 P.2d 151 (1996) (quoting Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, Syl. ¶ 8, 812 P.2d 761 [1991]).
[15] "The term `ex post facto,' as used in the constitution, relates to criminal punishment and has no relation to other retrospective laws." In re Clark, 86 Kan. 539, 541, 121 P. 492 (1912).
[16] When an inmate challenges a prison regulation as impinging on the inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. LeVier v. Nelson, 21 Kan. App. 2d 172, 176, 897 P.2d 188 (1995) (citing
[262 Kan. 196]
Thornburgh v. Abbott, 490 U.S. 401, 104 L.Ed.2d 459, 109 S. Ct. 1874 [1989], and Turner v. Safley, 482 U.S. 78, 96 L.Ed.2d 64, 107 S. Ct. 2254 [1987]).
[17] Prison officials are given wide latitude in matters concerning the administration of correctional facilities. Such discretion should not be interfered with by the court in the absence of abuse or unless exercised unlawfully, arbitrarily, or capriciously. See Breier v. Raines, 221 Kan. 439, 559 P.2d 813 (1977); Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972).
[18] "This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute." State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
[19] Discussion on this point must begin with plaintiffs' basic assumption that this is a penal or criminal statute. "Criminal statutes" are defined as "[f]ederal or state laws enacted by legislative bodies which define, classify, and set forth punishments for specific crimes." Black's Law Dictionary 337-38 (5th ed. 1979). "Criminal sanctions" are "[p]unishments attached to conviction of crimes such as fines, probation and sentences." Black's Law Dictionary 337. Using these definitions, this statute and its derivative regulation are neither criminal laws nor criminal sanctions. The fees are not attached to the criminal convictions but are attached to the inmate trust accounts without regard to what crimes were committed or what punishment resulted. K.S.A. 1996 Supp. 75-52,139 and K.A.R. 44-5-115 (a) (1996 Supp.) allow the Secretary of Corrections to collect fees for administration of inmate trust accounts.
[20] Additionally, the prison regulation is reasonably related to legitimate penological interests. The monthly charge of $1 is assessed as a fee for the facility administering the inmate's trust account. The legislature has charged the Department of Corrections with the following:
[21] "The legislative purpose in enacting this act shall be deemed to be establishment of a policy of treatment of persons convicted of felonies in this state by placing maximum emphasis on rehabilitation of each such person while in the custody of the state or under the jurisdiction of the courts> of the state, consistent
[262 Kan. 197]
with the interests and safety of the public, so that a maximum of persons so convicted may be returned to private life in the communities of the state with improved work habits, education, mental and physical health and attitudes necessary to become and remain useful and self-reliant citizens. It is the intent of the legislature that judges, the secretary of corrections, his or her agents, subordinates and employees and the Kansas adult authority, its agents, subordinates and employees will construe and apply this act and acts of which it is amendatory or supplemental liberally to rehabilitate, train, treat, educate and prepare persons convicted of felony in this state for entry or reentry into the social and economic system of the community upon leaving the custody of these state agencies and officers." K.S.A. 75-5201.
[22] In testifying before the Senate Judiciary Committee on March 18, 1994, in support of H.B. 2832, from which K.S.A. 1996 Supp. 75-52,139 was born, defendant Secretary stated, in pertinent part:
"Assessing fees to offenders is based on a belief that offenders should be accountable for their actions, and contributing to the costs of incarceration or supervision are important components of establishing that accountability."
[23] K.A.R. 44-5-115 (a) (1996 Supp.) is reasonably related to these goals. Plaintiffs are charged a service fee for the administration of their accounts. This procedure reasonably prepares plaintiffs for reentry into the social and economic system of the community upon leaving the correctional institution.
[24] Plaintiffs assert that Taylor v. State of R.I. Dept. of Corrections, 908 F. Supp. 92 (D.R.I. 1995), has decided this issue in their favor. Although there are some similarities to this case, Taylor has limited applicability.
[25] In Taylor, the Rhode Island Department of Corrections promulgated a regulation, under authority of state statute, requiring that a monthly $15 supervision fee be assessed on probationers and parolees, effective July 1, 1994. It also provided for a financial hardship waiver of the fee.
[26] Taylor and four other plaintiffs, all convicted and sentenced to probation before July 1, 1994, received a letter from the department of corrections notifying them that the fee would be imposed beginning July 1, 1994. No hardship waivers were mentioned in the letter. Fees were assessed which plaintiffs refused to pay. Plaintiffs claimed that imposition of the supervision fee on those who
[262 Kan. 198]
were sentenced to probation prior to the effective date of the regulation violated the Ex Post Facto Clause.
[27] The court concluded that there was an ex post facto violation. In reaching this conclusion, several facts were critical to the court. Pertinent among them, the court believed that the fee did in fact increase the burdens of the punishment. Because the plaintiffs were placed on probation as a result of their convictions, probation was the punishment. At the time they sought and received probation, a monetary payment for supervision was not required. Thus, the court concluded, each plaintiffs' punishment was made significantly more burdensome as a result of the later imposition of the fee. 908 F. Supp. at 100.
[28] Unlike the fees at issue in Taylor, the fees here, on inmate accounts, are not linked to plaintiffs' punishments. The fees herein are service fees for administering the inmates' trust accounts.
[29] We find this claim to be without merit. The fee is charged for services rendered, has not been shown to be excessive, is reasonably related to legitimate penological goals, and is not an additional punishment.
[30] Next, plaintiffs argue enforcement of K.A.R. 44-5-115 (a) (1996 Supp.) violates their plea agreements with the State. There is nothing in the record establishing what the plaintiffs' plea agreements were. Plaintiffs rely on Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 863 P.2d 364 (1993). In Dickerson, defendant entered into a plea agreement which involved, inter alia, a negotiated sum of $350 for the drug tax (K.S.A. 1996 Supp. 79-5202). Later, the Department of Revenue attempted to up the ante on the drug tax. We held the Department was estopped to collect that additional tax. The Dickerson case is readily distinguishable. A particular amount of drug tax was agreed to as a part of the plea bargain. In the case before us, administrative fees for services charged to all correctional inmates are at issue. We find no merit in this issue.
[31] The judgment of the district court is affirmed.
[262 Kan. 199]
[1] Supreme Court of Kansas
[2] 76, 511
[3] 262 Kan. 194, 936 P.2d 245, 1997.KS
[4] April 18, 1997.
[5] STANLEY D. ROARK and/or NOEL LOGAN, Appellants,
v.
BILL GRAVES, GOVERNOR OF KANSAS, et al., Appellees.
[6] Paula D. Hofaker, of Logan, argued the cause and was on the brief for appellants. Robert E. Wasinger, of Kansas Department of Corrections, Norton Correctional Facility, argued the cause and was on the brief for appellee.
[7] The opinion of the court was delivered by
[8] This is a 42 U.S.C. § 1983 (1994) action by certain inmates of the Norton Correctional Facility challenging the assessment of monthly service fees against them for the administration of their trust accounts pursuant to K.A.R. 44-5-115 (a) (1996 Supp.) on the grounds that it is violative of their due process rights and the Ex Post Facto Clause of the United States Constitution. The district court upheld the assessment of the fees, and plaintiffs appeal therefrom.
[9] The statute from which the regulation arises is K.S.A. 1996 Supp. 75-52,139, passed by the legislature in 1994 (L. 1994, ch. 227, § 10). It provides:
"The secretary of corrections is hereby authorized to adopt rules and regulations under which offenders in the secretary's custody may be assessed fees for various services provided to offenders and for deductions for payment to the crime victims compensation fund."
[10] From the statute, the Secretary of Corrections promulgated K.A.R. 44-5-115 (1996 Supp.), the pertinent part of which provides:
[262 Kan. 195]
[11] "(a) Each inmate in the custody of the secretary of corrections shall be assessed a charge of one dollar each payroll period, not to exceed $12.00 per year, as a fee for the facility administering the inmate's trust account. The facility shall be authorized to transfer the fee from each inmate's account from the balance existing on the first of each month. In the event an inmate has insufficient funds on the first of the month to cover this fee, the fee shall be transferred as soon as the inmate has sufficient funds in the account to cover the fee. All funds received by the facility pursuant to this provision shall be paid on a quarterly basis to the crime victims compensation fund."
[12] Plaintiffs contend that this regulation is violative of their due process rights under the United States Constitution by virtue of its requirement that the fees collected are to be paid to the crime victims compensation fund as opposed to being used to defray the costs of administering the trust accounts. This identical issue has been determined adversely to plaintiffs herein in Weinlood v. Simmons, 262 Kan. 259, 936 P.2d 238 (1997), which case is controlling on this issue.
[13] Plaintiffs next argue that this regulation violates the Ex Post Facto Clause of the United States Constitution by retroactively imposing punishment on inmates after the commission of their crimes.
[14] "`The United States Constitution prohibits the legislative enactment of any ex post facto law. U.S.C.onst., art. I, § 10. Two critical elements must be present for a criminal or penal law to be ex post facto: It must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. A criminal law disadvantages the offender if it punishes an act not punishable when committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters the legal rules of evidence.'" State v. LaMunyon, 21 Kan. App. 2d 281, 285, 898 P.2d 1182 (1995), aff'd 259 Kan. 54, 911 P.2d 151 (1996) (quoting Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, Syl. ¶ 8, 812 P.2d 761 [1991]).
[15] "The term `ex post facto,' as used in the constitution, relates to criminal punishment and has no relation to other retrospective laws." In re Clark, 86 Kan. 539, 541, 121 P. 492 (1912).
[16] When an inmate challenges a prison regulation as impinging on the inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. LeVier v. Nelson, 21 Kan. App. 2d 172, 176, 897 P.2d 188 (1995) (citing
[262 Kan. 196]
Thornburgh v. Abbott, 490 U.S. 401, 104 L.Ed.2d 459, 109 S. Ct. 1874 [1989], and Turner v. Safley, 482 U.S. 78, 96 L.Ed.2d 64, 107 S. Ct. 2254 [1987]).
[17] Prison officials are given wide latitude in matters concerning the administration of correctional facilities. Such discretion should not be interfered with by the court in the absence of abuse or unless exercised unlawfully, arbitrarily, or capriciously. See Breier v. Raines, 221 Kan. 439, 559 P.2d 813 (1977); Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972).
[18] "This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute." State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
[19] Discussion on this point must begin with plaintiffs' basic assumption that this is a penal or criminal statute. "Criminal statutes" are defined as "[f]ederal or state laws enacted by legislative bodies which define, classify, and set forth punishments for specific crimes." Black's Law Dictionary 337-38 (5th ed. 1979). "Criminal sanctions" are "[p]unishments attached to conviction of crimes such as fines, probation and sentences." Black's Law Dictionary 337. Using these definitions, this statute and its derivative regulation are neither criminal laws nor criminal sanctions. The fees are not attached to the criminal convictions but are attached to the inmate trust accounts without regard to what crimes were committed or what punishment resulted. K.S.A. 1996 Supp. 75-52,139 and K.A.R. 44-5-115 (a) (1996 Supp.) allow the Secretary of Corrections to collect fees for administration of inmate trust accounts.
[20] Additionally, the prison regulation is reasonably related to legitimate penological interests. The monthly charge of $1 is assessed as a fee for the facility administering the inmate's trust account. The legislature has charged the Department of Corrections with the following:
[21] "The legislative purpose in enacting this act shall be deemed to be establishment of a policy of treatment of persons convicted of felonies in this state by placing maximum emphasis on rehabilitation of each such person while in the custody of the state or under the jurisdiction of the courts> of the state, consistent
[262 Kan. 197]
with the interests and safety of the public, so that a maximum of persons so convicted may be returned to private life in the communities of the state with improved work habits, education, mental and physical health and attitudes necessary to become and remain useful and self-reliant citizens. It is the intent of the legislature that judges, the secretary of corrections, his or her agents, subordinates and employees and the Kansas adult authority, its agents, subordinates and employees will construe and apply this act and acts of which it is amendatory or supplemental liberally to rehabilitate, train, treat, educate and prepare persons convicted of felony in this state for entry or reentry into the social and economic system of the community upon leaving the custody of these state agencies and officers." K.S.A. 75-5201.
[22] In testifying before the Senate Judiciary Committee on March 18, 1994, in support of H.B. 2832, from which K.S.A. 1996 Supp. 75-52,139 was born, defendant Secretary stated, in pertinent part:
"Assessing fees to offenders is based on a belief that offenders should be accountable for their actions, and contributing to the costs of incarceration or supervision are important components of establishing that accountability."
[23] K.A.R. 44-5-115 (a) (1996 Supp.) is reasonably related to these goals. Plaintiffs are charged a service fee for the administration of their accounts. This procedure reasonably prepares plaintiffs for reentry into the social and economic system of the community upon leaving the correctional institution.
[24] Plaintiffs assert that Taylor v. State of R.I. Dept. of Corrections, 908 F. Supp. 92 (D.R.I. 1995), has decided this issue in their favor. Although there are some similarities to this case, Taylor has limited applicability.
[25] In Taylor, the Rhode Island Department of Corrections promulgated a regulation, under authority of state statute, requiring that a monthly $15 supervision fee be assessed on probationers and parolees, effective July 1, 1994. It also provided for a financial hardship waiver of the fee.
[26] Taylor and four other plaintiffs, all convicted and sentenced to probation before July 1, 1994, received a letter from the department of corrections notifying them that the fee would be imposed beginning July 1, 1994. No hardship waivers were mentioned in the letter. Fees were assessed which plaintiffs refused to pay. Plaintiffs claimed that imposition of the supervision fee on those who
[262 Kan. 198]
were sentenced to probation prior to the effective date of the regulation violated the Ex Post Facto Clause.
[27] The court concluded that there was an ex post facto violation. In reaching this conclusion, several facts were critical to the court. Pertinent among them, the court believed that the fee did in fact increase the burdens of the punishment. Because the plaintiffs were placed on probation as a result of their convictions, probation was the punishment. At the time they sought and received probation, a monetary payment for supervision was not required. Thus, the court concluded, each plaintiffs' punishment was made significantly more burdensome as a result of the later imposition of the fee. 908 F. Supp. at 100.
[28] Unlike the fees at issue in Taylor, the fees here, on inmate accounts, are not linked to plaintiffs' punishments. The fees herein are service fees for administering the inmates' trust accounts.
[29] We find this claim to be without merit. The fee is charged for services rendered, has not been shown to be excessive, is reasonably related to legitimate penological goals, and is not an additional punishment.
[30] Next, plaintiffs argue enforcement of K.A.R. 44-5-115 (a) (1996 Supp.) violates their plea agreements with the State. There is nothing in the record establishing what the plaintiffs' plea agreements were. Plaintiffs rely on Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 863 P.2d 364 (1993). In Dickerson, defendant entered into a plea agreement which involved, inter alia, a negotiated sum of $350 for the drug tax (K.S.A. 1996 Supp. 79-5202). Later, the Department of Revenue attempted to up the ante on the drug tax. We held the Department was estopped to collect that additional tax. The Dickerson case is readily distinguishable. A particular amount of drug tax was agreed to as a part of the plea bargain. In the case before us, administrative fees for services charged to all correctional inmates are at issue. We find no merit in this issue.
[31] The judgment of the district court is affirmed.
[262 Kan. 199]