(dissenting) — Aaron Brown was a persistent disciplinary problem in the correctional system. He lost any opportunity for good time (earned early release) credits against his sentence because he committed at least 175 serious infractions while incarcerated. Brown exemplifies why our Legislature enacted RCW 9.94.070, creating a new crime of persistent prison misbehavior. The majority today employs logic only an Academician could cherish to hold the statute inapplicable because the Department of Corrections (Department) promulgated its list of serious infractions under RCW 72.01.090, rather than RCW 72.09.130. I would hold the Department’s list of serious infractions, given to each prisoner by the Department, was a sufficient predicate for application of RCW 9.94.070. Moreover, I would reverse the lower court decisions which erroneously held RCW 9.94.070 was an unconstitutional delegation of legislative power.
(1) Department Rules on Infractions
The basis for the majority decision, not analyzed below by the Court of Appeals, is the failure of the Department to promulgate the list of serious infractions under RCW 72.09.130 rather than under RCW 72.01.090. The Department adopted its prison disciplinary code, chapter 137-28 WAC, under RCW 72.01.090 which states:
The department is authorized to make its own rules for the proper execution of its powers. It shall also have the power to adopt rules and regulations for the government of the public institutions placed under its control, and shall therein prescribe, in a manner consistent with the provisions of this title, the duties of the persons connected with the management of such public institutions.
*64This code is given to each prisoner by the Department upon intake, and these rules are available in living units and libraries at each institution. It is safe to say the prisoners are well aware of these rules. RCW 72.09.130 states:
(1) The department shall adopt, by rule, a system that clearly links an inmate’s behavior and participation in available education and work programs with the receipt or denial of earned early release days and other privileges. The system shall include increases or decreases in the degree of liberty granted the inmate within the programs operated by the department, access to or withholding of privileges available within correctional institutions, and recommended increases or decreases in the number of earned early release days that an inmate can earn for good conduct and good performance.
(2) Earned early release days shall be recommended by the department as a reward for accomplishment. The system shall be fair, measurable, and understandable to offenders, staff, and the public. At least once in each twelve-month period, the department shall inform the offender in writing as to his or her conduct and performance. This written evaluation shall include reasons for awarding or not awarding recommended earned early release days for good conduct and good performance. An inmate is not eligible to receive earned early release days during any time in which he or she refuses to participate in an available education or work program into which he or she has been placed under RCW 72.09.460.
(3) The department shall provide each offender in its custody a written description of the system created under this section.
The rules of chapter 137-28 WAC effectively conform to the mandate of RCW 72.09.130. The Legislature knew of these rules and clearly intended them to apply to persistent prison misbehavior.
It is the height of judicial flapdoodle to say the rules set forth in chapter 137-28 WAC do not form the predicate for a violation of RCW 9.94.070 simply because the rules were adopted by the Department on the same subject under a different legislative grant of authority. We can certainly take judicial notice of the fact the Department repromulgated the same substantive disciplinary code in *65chapter 137-28 WAC under the specific authority of RCW 72.09.130 in 1998. The rules promulgated under RCW 72.01.090 are effective for purposes of RCW 9.94.070.
(2) Unconstitutional Delegation of Legislative Power
Although the majority did not reach the issue of unconstitutional delegation of legislative power found to be dispositive by the Court of Appeals, I would address the question and reverse the Court of Appeals. We presume statutes are constitutional; the burden is on Brown to demonstrate the statute’s unconstitutionality beyond a reasonable doubt. Island County v. State, 135 Wn.2d 141, 146-47, 955 P.2d 377 (1998). The Legislature may delegate policy-making responsibilities to administrative agencies if (1) the Legislature provides standards defining what is to be done and by whom; and (2) procedural safeguards are present to control arbitrary administrative action or administrative abuse of discretionary authority. Barry & Barry, Inc. v. Dep’t of Motor Vehicles, 81 Wn.2d 155, 159, 500 P.2d 540 (1972). All here agree RCW 9.94.070 meets the first aspect of the test. It is the second feature of the test that is at issue.
We determine the sufficiency of procedural safeguards by the three-part balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). In Morris v. Blaker, 118 Wn.2d 133, 144-45, 821 P.2d 482 (1992), we adopted the Mathews formulation, noting due process is a flexible concept calling for procedural protections appropriate to a given situation. The degree of process afforded in a case, according to Morris and Mathews, depends on a balancing of these factors: (1) the private interest to be protected; (2) the risk of erroneous deprivation of the interest by the government’s procedures; and (3) the government’s interest in maintaining the procedures. Morris, 118 Wn.2d at 144-45.
With respect to the private interest at stake here, Brown, like other prisoners in correctional facilities, is not without rights, but the due process rights of prisoners are very limited. In re Personal Restraint of Gronquist, 138 Wn.2d *66388, 978 P.2d 1083 (1999). The need of correctional staff to secure order and proper compliance with directives in the context of institutions full of individuals who have a history of violent behavior is pressing. Courts have expressed this concept as one of deference to the expertise of prison officials in the day-to-day operations of the correctional institutions. See, e.g., Turner v. Safley, 482 U.S. 78, 95, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995); Gronquist, 138 Wn.2d at 405-06. There is no effective deterrent to institutional misconduct if the Department’s most effective deterrent—loss of good time—cannot be imposed because the prisoner is such a chronic disciplinary problem. The court’s meddling with this lawful goal is regrettable.
With respect to the risk of erroneous deprivation, prisoners like Brown have ample procedural protections available. Brown had advance notice of the list of serious infractions; he received a copy of them. Brown had a right of administrative review as to any of his infractions. See generally Gronquist, 138 Wn.2d at 398. He had the right to judicial review by personal restraint petition, or possibly by a writ of certiorari. See, e.g., City of Auburn v. King County, 114 Wn.2d 447, 788 P.2d 534 (1990). Finally, he had the full array of protections afforded a defendant in a criminal trial.
The Court of Appeals analysis below focused on our decision in In re Personal Restraint of Powell, 92 Wn.2d 882, 602 P.2d 711 (1979) where we invalidated a legislative delegation because the Legislature conferred authority on the Board of Pharmacy to adopt rules classifying controlled substances and the Board did so by emergency without public notice or comment. The possession of a controlled substance thus described by the Board was a felony.
But in order to satisfy the Barry & Barry test as to procedural safeguards, we have held adoption of the rule in accordance with the Administrative Procedure Act (APA) is not required. In State v. Crown Zellerbach Corp., 92 Wn.2d 894, 896, 602 P.2d 1172 (1979), we upheld a delegation of *67power to the Department of Fisheries and Wildlife which allowed it to grant conditional permits. Violation of these permits was a crime. Crown Zellerbach, 92 Wn.2d at 899. We found in that case the statutory and common law procedures available to defendants in their criminal appeals, as well as the APA, gave enough safeguards against arbitrary and unauthorized agency action. But APA compliance was not mandatory for a proper delegation. Id. at 903.
We have upheld the delegation of legislative power where the decision of the administrative body effectively becomes an element of a crime. Crown Zellerbach, 92 Wn.2d at 902 (gross misdemeanor); State v. Holmes, 98 Wn.2d 590, 657 P.2d 770 (1983) (felony welfare fraud established by Department of Social and Health Services regulations defining eligibility for public assistance); State v. Wadsworth, 139 Wn.2d 724, 991 P.2d 80 (2000) (superior court’s designation of areas in courthouse to be declared weapon-free by court order without public process to adopt the order established element of crime of unlawful possession of a weapon).
In summary, the private interest of prisoners to be protected, rightly understood, is the right to have notice and an opportunity to be heard on the prison infractions forming the basis for a prosecution under RCW 9.94.070. This interest is relatively small in comparison to the need of the Department to safely and securely operate the correctional system. The risk of erroneous deprivation of that right is small, given that all prisoners get notice of the infraction list, and there are internal appellate procedures in place in the institutional setting as well as external review procedures. Thus, under Mathews, the Barry & Barry test was met as Brown had all the process he was due.
(3) Conclusion
Aaron Brown was the poster child for legislative enactment of a persistent prison misbehavior statute. While incarcerated, Brown has been disruptive and dangerous. He threatened the lives of correctional staff and others, he *68committed assaults on staff, he falsely reported fires, he made bomb threats, and he destroyed property. He lost all good time by committing 175 serious infractions. The Department had few tools left to it to restrain Brown. RCW 9.94.070 is necessary and constitutional legislation. I would reverse the trial court’s order of dismissal and remand this case to the Walla Walla County Superior Court for trial.
Ireland and Bridge, JJ., concur with Talmadge, J.