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Ninth Circuit Flip-Flops: Denial of Washington Sex Offender’s Community Custody Release Held Unconstitutional, Then Constitutional

Ninth Circuit Flip-Flops: Denial of Washington Sex Offender’s Community Custody Release
Held Unconstitutional, Then Constitutional

by Mark Wilson

Illustrating the axiom that the law means whatever a judge decides it means, in a 2-to-1 decision, a panel of the Ninth Circuit Court of Appeals held that Washington state law creates a liberty interest in a prisoner’s early release to community custody. Two weeks later, however, one of the majority opinion judges died, a new judge was assigned to the panel, and the opinion was withdrawn. The new judge joined the previously dissenting judge to form a new majority, which held that Washington law does not create a liberty interest in community custody release.
In August 1999, 20-year-old Joseph Dale Carver was sentenced to 54 months in prison for his third child molestation conviction. He committed his first sex offense when he was 14 years old. While serving his current prison term he commit-ted 15 disciplinary infractions, including sexual harassment of a prison employee.

Washington Revised Code (RCW) § 9.94A.728(1)(b)(ii)(B)(I) bars early release for sex offenders, but § 9.94A.728(2)(a) allows sex offenders to be placed in community custody – i.e., intense monitoring in the community for at least one year after release or transfer from confinement (aka parole). Community custody eligibility is contingent upon an acceptable release plan. RCW § 9.94A.728(2)(c).

Carver submitted a release plan in March 2002, but it was denied pursuant to a Department of Corrections (DOC) pol-icy that categorically barred community custody eligibility to offenders like Carver, who were deemed sexually violent predators and had been referred for civil commitment. That policy was subsequently invalidated as violating state law. See: In re Dutcher, 60 P.3d 635 (Wa. Ct. App. 2002) [PLN, Feb. 2004, p.26].

As a result of the denial of his community custody release plan, Carver served his full term of confinement. After his release in September 2004, he sued in federal court alleging that DOC officials had improperly denied his release plan without affording him due process of law. The district court granted summary judgment to the defendants, holding that Washington law did not create a liberty interest in early release to community custody, and that the defendants were enti-tled to qualified immunity.

On June 9, 2008 a panel of the Ninth Circuit reversed in part, with Judges Ferguson and Reinhardt issuing a majority opinion “holding that Washington law creates a liberty interest in an inmate’s early release into community custody.” How-ever, since that liberty interest was “not sufficiently clearly established” at the time, the Court of Appeals affirmed the grant of qualified immunity. Circuit Judge Milan Smith entered an opinion that concurred with the judgment but dissented as to the existence of a liberty interest in community custody release. See: Carver v. Lehman, 528 F.3d 659 (9th Cir. 2008).

Several weeks later, on June 23, 2008, the parties sought reconsideration. Two days after that Judge Ferguson un-expectedly died. Judge Tallman was drawn as a replacement, and on August 26, 2008 the panel voted to amend its pre-vious opinion, withdrawing it and denying the rehearing petitions as moot.

On December 22, 2008, Judges Smith and Tallman formed a new majority, holding that Washington law does not create a liberty interest in a prisoner’s release to community custody.
This time Judge Reinhardt issued a strongly-worded opinion that concurred in the judgment but criticized the new majority for reversing the panel’s prior ruling.

“[I]t is indisputable that the law did not change and the Constitution did not change between the time of the original panel’s decision and the time of the new majority’s opinion,” Judge Reinhardt wrote. “All that changed is the composition of the three-judge panel. To those who question whether the results in constitutional and other cases depend on the membership of the panel ... the result in the case currently before our panel is merely a minor illustration of how the judi-cial system currently operates.”

Judge Reinhardt suggested that the more appropriate course would have been to take the issue up on en banc re-hearing. Proceeding in that manner “would help to secure the legitimacy of court decisions and, necessarily, to maintain public confidence in the judicial system,” he argued.
“This is simply a case in which Judge Ferguson and I [on the original panel] tried our best to do our job, including the mundane task of seeing that prisoners, like all other persons, are afforded the rights to which they are entitled under the law,” Reinhardt remarked.

As a side note, the new majority endorsed citing and considering unpublished opinions “so long as they do not conflict with binding precedential decisions.” Judge Reinhardt, however, took issue with “the majority’s lengthy disquisition on memorandum dispositions and published opinions,” saying “it should not be necessary for me to restate the obvious: The law is established in published opinions and published opinions only.”

Were the majority’s view accepted, “the law in this circuit would no longer be declared in opinions; ‘existing’ circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review,” said Reinhardt. “What an odd legal system we would be adopting for the Ninth Circuit – one that would be operative in this court only. Surely my colleagues cannot mean what their opinion states. Say it ain’t so, my friends,” he concluded in the amended opinion entered on December 22, 2008, which also included a sharp retort by the majority. See: Carver v. Lehman, 550 F.3d 883 (9th Cir. 2008).

The unusual procedural stance of this case didn’t end there. The December 2008 ruling was itself amended on March 3, 2009, and the new amended ruling entirely avoids the controversy regarding the endorsement of unpublished opinions. Judge Reinhardt’s comments are abridged in the amended opinion, and his “say it ain’t so” remark is no longer included. The majority’s ruling, however, which held there is no liberty interest in community custody release under Washington law, remains unchanged. See: Carver v. Lehman, 558 F.3d 869 (9th Cir. 2009).

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Carver v. Lehman

Carver v. Lehman

Carver v. Lehman