(dissenting)
There is no iron curtain drawn between the Constitution and the prisons of this country.
Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (White, J.).
In 1995 the Washington State Legislature mandated that “[t]he department [of Corrections] shall establish a uniform policy on the privilege of extended family visitation.” RCW 72.09.490(1). Complying with this statutory directive the Department of Corrections (DOC) promulgated regulation DOP 590.100 which, at its outset, states its purpose:
To provide eligible offenders the opportunity to maintain relationships with authorized family members; to maintain marriages which existed prior to incarceration in DOC; and to provide an incentive for offenders to maintain a positive behavior and attitude while incarcerated.
Resp’t’s Suppl. Br. Regarding Exclusion from the Extended Family Visit Program Based Upon Crime and History of Domestic Violence, App. D (DOC, Division of Prisons, Extended Family Visiting, DOP 590.100) (hereinafter Resp’t’s Suppl. Br., App. D (DOP 590.100)).
Notwithstanding the obvious nobility of a prison policy which assists inmates to maintain their marriages and family ties under such trying circumstances, the facts of this case illustrate the human tragedy and suffering imposed not only upon the inmate but his wife and small children when prison officials cease to practice the purpose which they have embraced in theory. Similarly, such travesty is not remitted by courts which fail to stand behind the legal rights of prisoners touting noninvolvement in the “ ‘day-to-day management of prisons’ ” (majority at 393 *400(quoting Sandin v. Conner, 515 U.S. 472, 482, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995))) as superior to the discharge of their duty to protect the legal rights of every citizen, including those behind bars.
Mr. Richard Dyer was disqualified from further participation in the program after more than 10 years of successful family visits upon the DOC claim that he was ineligible for future participation pursuant to subpart D.4.i. of the new regulation. This section provides,
Offenders may be excluded from participation if they have a documented history of domestic violence against any person.
Resp’t’s Suppl. Br., App. D (DOP 590.100-D.4.i.).
The regulations further define “domestic violence”:
Any act of violence or abuse directed toward a family or household member. Family or household members include children, spouse, persons who have a child in common regardless of whether they have been married or have lived together at any time, persons related by blood or marriage, and persons who have resided together in the past.
Id. App. D (DOP 590.100 DEFINITIONS).
Although it would seem the purpose of this visitation exception is to protect potential visitors who were previously victimized by the prisoner from the likelihood of repetitive violence (and the department here initially justified termination of Dyer’s extended family visits exactly upon that factually mistaken ground), it now appears the department claims to deny this prisoner extended family visits with his wife and children not because the prisoner has, even allegedly, committed an act of domestic violence directed toward any of them, but rather because the department claims the prisoner perpetrated domestic violence against his first wife with whom he has had no contact for 30 years and his second wife with whom he has had no contact for 20 years. It is left to the imagination how such a claim, even if it is factually accurate, may fit within the plain language of the regulation much less advance its stated purpose.
*401I make this preliminary point because “domestic violence” is defined as “[a]ny act of violence or abuse directed toward a family or household member” when, in fact, neither the first nor the second wife are now part of the prisoner’s “family” nor were they his household members even at the time of his initial incarceration. Resp’t’s Suppl. Br., App. D (DOP 590.100 DEFINITIONS). Rather his “family” is his wife Rennetta, and their three small children, none of whom have had any physical conflict with this husband and father.
Moreover, even if we assumed ex-wives still qualify as “family” members for the purpose of this regulation, it remains to be proved that the prisoner in fact perpetrated domestic violence against either of them.
The regulation references a “documented history of domestic violence,” id. App. D (DOP 590.100-D.4.i.), without further definition of what this might be. The DOC, however, was quick to qualify during oral argument that false allegations of domestic violence, even though reduced to writing, especially when contraverted by other writings, are not enough. In re Personal Restraint of Dyer, No. 67673-9 (argued Oct. 17, 2000), oral argument tape 1, side 1.
Nevertheless the department asserts on just such sparse and self-contradictory record that this prisoner should be denied his right to extended family visits without even affording the prisoner the slightest opportunity to participate in a hearing, even before prison officials, where contested facts could be determined, if only summarily and superficially.
According to the DOC there were two alleged instances of domestic violence which disqualify this prisoner from further extended family visits, one which occurred in January 1972 with his first wife, Janet Cutting, and the other involving an alleged incident with his second wife, Ethel Acord, in 1981.
As to the earlier instance, the department states in its *402September 30, 1999, letter to Dyer’s attorney, Leta Schattauer:
A review of inmate Dyer’s pre-sentence investigative reported [sic] dated February 16, 1982, shows inmate Dyer’s first wife, Janet Cutting, was issued a restraining order based on inmate Dyer’s violence against her.
Resp’t’s Suppl. Br., App. J (Letter from Superintendent Snyder to Attorney Leta J. Schattauer (Sept. 30, 1999)).
As to this claim the record shows that an ex parte restraining order was indeed entered against Mr. Dyer in January 1972 which provides he “is immediately restrained from coming about or molesting the plaintiff and minor child of the parties, wherever they may be.” Dyer v. Walter (Wash. No. 66348-3), Pl.’s Reply to Resp. re Pet. against State Officer and for Writ of Mandate and Request for Referral of Questions of Fact, Ex. R (attachment). However, there is nothing in the record suggesting that there was any factual predicate for this routine ex parte order, nor does an order which prohibits future conduct imply such conduct necessarily occurred in the past. To the contrary, the record shows that Mr. Dyer was in fact serving his country in Vietnam at the time, not to return until September 1972, after his first wife had made the divorce final in his absence and the temporary restraining order dissolved by its own terms. The record also affirmatively shows that Mr. Dyer denies any act of domestic violence against his first wife. And there is nothing in the record, including this naked restraining order, to the contrary.
The second alleged incident of domestic violence involved his second wife, Ethel Acord. The September 30, 1999 letter from the DOC states in this regard:
Inmate Dyer was convicted of raping his second wife. The conviction was overturned in 1984, and remanded for a new trial. A review of the appeal decision shows the conviction was overturned because of procedural errors. While I cannot conclude inmate Dyer’s innocence or guilt in this incident, I cannot ignore the facts presented which suggest he committed domestic violence against his second wife.
*403Resp’t’s Suppl. Br., App. J (Letter, Sept. 30, 1999) (emphasis added). In point of fact, this conviction was overturned, and Mr. Dyer states in the record that he did not rape his second wife nor engage in acts of domestic violence against her. More fundamentally, based on all of this, the superintendent states, “I cannot conclude inmate Dyer’s innocence or guilt in this incident. ...” (id.) yet, in contradiction, denies Mr. Dyer and his family participation in this extended family visits (EFV) program as if he were actually guilty.
The majority also seems to emphasize an alleged hearsay account that Dyer stated he “victimized” his second wife, although that is not the stated basis for the department’s revocation of his participation in the program nor does the statement, taken at face value, necessarily indicate an act of domestic violence in any event.
Such is the sum total of the “facts” upon which the department justifies its actions.
Before embarking on further legal analysis, I think it is important to notice several additional facts regarding the prisoner and his family which demonstrate the importance of this program to them.
First Dyer married his current wife approximately a year before incarceration and had one child before incarceration. They had two children after incarceration as a result of visits sanctioned by DOC. Early on, DOC commissioned a psychological evaluation of the prisoner which recommended these extended family visits as highly beneficial and most appropriate.
These small children and their mother, the prisoner’s wife, have, without doubt, suffered mightily as a result of the DOC’s decision to terminate extended family visits in 1995. As the majority relates, they have moved their household to Oklahoma for economic reasons and find it difficult to come to the State of Washington to visit their father and husband more frequently. Understandably they would make the most of their visit in an atmosphere other than the sterility of the prison visiting room under the *404constant watchful eye of prison guards. One of Dyer’s small children, Lisa, wrote the prison superintendent pleading her case that extended family visits be reinstituted with her dad:
Trailer viest mean more to me because I can talk to my dad without outh peple there It makes me fell like a real family. So I can give my dad a huge and a kiss when ever I want to. So we can be like a normal family. We can play games whithout outher people there. We are a faimily but not with out him
You friend
Lisa
Dyer v. Walter (Wash. No. 66348-3), Pet. against State Officer and for Writ of Mandate, Ex. N.
His elder daughter, Stephanie, wrote the following on August 30, 1997:
My name is Stephanie Dyer. I’m 16 yrs-old and am the daughter of Richard Dyer.
What I don’t understand is why my family doesn’t have Extended Family Visits anymore. We never did anything to abuse that privilege.
In an E.F.V. we can act more as a family. Our family looks forword to our E.F.V.’s. We cherish them. It’s easier to be yourself and be more affectionate in an E.F.V.
In an E.F.V. our family bonds and becomes closer. Things other families take for granted, our family greatly appreciates. Like playing games, or just eating a meal together.
Our family is more comfortable in an E.F.V. It’s hard to be comfortable in a visiting room with guards constantly looking over your shoulder.
Please give our E.F.V.’s back. It’s the only time we can feel like a normal family.
Sincerely,
Stephanie Dyer
Id. Pet. against State Officer and for Writ of Mandate, Ex. N.
*405These letters convey a force of reason and familial love which stands as living testament to the true purpose underlying these regulations, a purpose somehow lost in application.
Although the prison regulation provides the superintendent may allow extended family visits by exception, even when the inmate does not qualify under the letter of the rule, an exception for Mr. Dyer and his family was nonetheless denied by the superintendent, Dan Snyder, who claims, “There is no modification to program that would allow an extended family visit within the limits of risk acceptable to the Department.” Resp’t’s Suppl. Br., App. J (Letter, Sept. 30, 1999). The superintendent does not explain, however, how “limits of risk acceptable to the Department,” id,., are exceeded by a continuation of extended family visits under circumstances which include more than 10 years of successful extended family visitations.
The duration of Mr. Dyer’s incarceration also bears some witness. Convicted of a double rape in 1981 he was sentenced to prison under the jurisdiction of the Indeterminate Sentence Review Board (ISRB) for a maximum term of life. In 1981 the Sentencing Reform Act (SRA), chapter 9.9A RCW, was passed. Had Mr. Dyer committed these offenses after passage of the SRA, and if he were given a midrange standard sentence with good behavior, he would have served 74 months according to ISRB calculations and been released in 1989. Resp’t’s Suppl. Br., App. C at 1 (ISRB Decision and Reasons (Mar. 8, 1995)). The ISRB is to be guided, at least in part, by the duration of these standard range sentences. RCW 9.95.013 (requiring decisions of the board to be reasonably consistent with the ranges, standards, and purposes of the SRA). However, the ISRB nonetheless has continued to deny Mr. Dyer parole based, at least in part, on his continued exercise of his right not to admit guilt with respect to these two convictions. Resp’t’s Suppl. Br., App. C at 4 (ISRB Decision and Reasons) (relying upon Dyer’s “denial of the crime” as a fact support*406ing its determination). Under the SRA, however, denial of guilt is no basis to extend the duration of incarceration.
The majority affirms the department’s denial of participation in the EFV program based upon its double legal conclusion that (1) “extended family visits are not a liberty interest” and (2) “the Department of Corrections did not act arbitrarily or capriciously in following the Division of Prisons Directive.” Majority at 387. I take issue with both.
I. Extended Family Visits as a Liberty Interest
A liberty interest may be created by administrative regulation where an “atypical and significant hardship” is imposed on an inmate “in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). These rights have also been recognized as matters of state constitutional law. See Cooper v. Morin, 49 N.Y.2d 69, 399 N.E.2d 1188, 1195, 424 N.Y.S.2d 168 (1979) (requiring program of contact visitation to be instituted within reasonable period of time). In this state a “normal incident[] of prison life” (majority at 393 (citing Sandin, 515 U.S. at 484)) is the right of qualified inmates to participate in the EFV program. DOP 590.100 DIRECTIVE (“Each Division of Prisons’ facility shall provide an extended family visit program for eligible offenders.” (emphasis added)).
For the 11 years prior to November 1995 (including at least three visits after the implementation of DOP 590.100), EFVs were also as a practical matter part of the ordinary incidents of prison life for Richard Dyer. Dyer recalls being reviewed by the DOC and approved for continuation in the program after implementation of the new policy. His claim on this disputed point is badly misrepresented by the majority, which omits even mention of his position and assumes the conclusion in its characterization. See majority at 389 (“Dyer’s file was devoid of such documentation, and it does not appear he was reviewed under the new directive.”). But DOC assumes there was no review only because it has no record of any such proceeding, which would be *407required under DOC policy. Thus the admitted breach of one policy—the absence of the required review—is apparently substantiated by the assertion DOC didn’t violate its policies.
Unlike Sandin, in which the conditions of confinement did not change where a prisoner was punished by segregated confinement, DOC’s decision resulted in a significant change for Dyer and the loss of a status he had peacefully enjoyed for 11 years based on exactly the same record that qualified him for that status in the first place.
Whether or not Dyer had a prior liberty interest in a program not formalized by express rule, such an interest was certainly created by enactment of DOP 590.100. “[T]he most common manner in which a State creates a liberty interest is by establishing 'substantive predicates’ to govern official decisionmaking, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 462, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989) (citation omitted).
The majority’s assertion about not involving the court in the “ ‘day-to-day management of prisons’ ” (majority at 393 (quoting Sandin, 515 U.S. at 482)) is nothing more than allowing an “iron curtain [to be] drawn between the Constitution and the prisons of this country.” Wolff, 418 U.S. at 555-56. The majority says DOC’s decision to place someone in the program is a matter of discretion, majority at 398, but there is no discretion to deny an entitlement established by rule and required for a qualified recipient. See, e.g., State v. T.K., 139 Wn.2d 320, 331, 987 P.2d 63 (1999) (creating nondiscretionary obligation once the conditions of the statute in which “shall” is used are met). For these reasons I conclude a liberty interest in extended family visits exists in this state.
II. Arbitrary and Capricious
A decision is arbitrary and capricious if it is “ ‘willful and unreasoning action, without consideration and in disregard *408of facts and circumstances.’ ” City of Bellevue v. E. Bellevue Cmty. Council, 138 Wn.2d 937, 947-48, 983 P.2d 602 (1999) (quoting Pierce County Sheriff v. Civil Serv. Common, 98 Wn.2d 690, 695, 658 P.2d 648 (1983)). DOC’s revocation of Dyer’s status was arbitrary and capricious because it disregarded facts and circumstances unique to Dyer and also represents a result contrary to DOC policy. Dyer has a legitimate expectation of freedom from arbitrary action which dictates being treated consistent with the statutes and policies governing his incarceration. See Williams v. Seattle Sch. Dist. No. 1, 97 Wn.2d 215, 222, 643 P.2d 426 (1982).
The reason originally stated for revocation of extended family visit privileges, domestic violence against his current family, was completely baseless. DOC erroneously claimed a history of domestic violence against Dyer’s current spouse Rennetta. This was simply wrong, but it was not until DOC was notified of this fact that it alleged other bases for revocation of Dyer’s status. Dyer denies these additional allegations of domestic violence, a fact the majority also neglects to mention (or consider).
The majority tortures this point, saying, “In essence, Dyer has conceded that DOC acted properly,” and “Dyer has conceded that he may be excluded from the program because of a documented history of domestic violence.” Majority at 396. In fact, Dyer’s entire argument is premised on the idea DOC could exclude an inmate if it relied upon a legitimately documented history of domestic violence, but there was no such history (or valid reliance) here. The majority’s mischaracterization of Dyer’s position by imprecise use of his argument disingenuously concedes the issue in lieu of persuasive legal analysis or valid factual support for DOC’s position.
The subsequent rationale offered by DOC relies on a factually erroneous view of Dyer’s prior record. DOC apparently relied on the following to establish this “pattern” of domestic violence: (1) the 1982 pre-sentence investigation *409(PSI); (2) a 1972 restraining order filed against Dyer by his first wife; and (3) a conviction for raping his second wife which was subsequently reversed on appeal.
The majority also cites the 1982 PSI numerous times as proof Dyer “ ‘victimized his wife.’ ” Majority at 388, 396 (quoting Resp’t’s Suppl. Br., App. B (PSI at 1)). However the same PSI conceded that, “Due to the limited time available for completion of this report, minimal verifications were obtained.” Id. App. B (PSI at 2). Dyer fully denies the allegation and objects to the revocation of EFV on the basis of the otherwise unsubstantiated hearsay contained within the report.
As previously shown, the 1972 restraining order relied upon by DOC and the majority merely contains boilerplate language concerning domestic violence commonly used in marital dissolution proceedings. No specific instances of domestic violence were ever alleged or proved, as Dyer was serving our country in Vietnam during the entire period in question!
Finally, Dyer’s conviction for the alleged rape of his second wife was reversed by the Court of Appeals which found it to be tainted by impermissible evidence. There is also substantial evidence undermining the veracity of Dyer’s second wife and her allegations. For example, in dissolution proceedings her claims that he had not paid child support since the divorce were directly contradicted by receipts, court pleadings, and her own subsequent testimony. A number of factual inconsistencies existed in her testimony as well regarding the alleged rape itself, which she failed to report for a year, and then only after he announced his intention to wed Rennetta. Nor has Dyer been afforded the opportunity to rebut the validity of these problematic hearsay allegations in any subsequent fact-finding proceeding.
DOC also relied on factors which could not lawfully be considered under its own policies. “[T]he violent nature of his crime of commitment,” Resp’t’s Suppl. Br., App. J (Letter, Sept. 30, 1999) is facially irrelevant to denial of *410EFV participation under the regulatory language of DOP 590.100, which entails only acts of violence or abuse “directed toward a family or household member.” Id. App. D (DOP 590.100 DEFINITIONS). Dyer’s crime of commitment was not directed toward a family or household member and should not have been considered. If Mr. Dyer had not engaged in criminal conduct he wouldn’t be in prison!
The majority relies on DOP 590.100(C)(3), which provides disqualification is authorized if an offender is a danger to himself or others in the program, stating that determination may be based on the inmate’s crime, as well as current and prior behavior. Majority at 396. However, DOC never claimed this portion of the regulation supported its decision and admitted in oral argument it did not rely upon this rationale. In re Personal Restraint of Dyer, No. 67673-9 (argued Oct. 17, 2000), oral argument tape 1, side 1. An agency’s action may be upheld only on the basis articulated by the agency itself; “the courts may not accept appellate counsel’s post hoc rationalizations for agency action.” Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983). This justification referenced by the majority for revocation of Dyer’s EFV status is clearly beyond the scope of the regulation at issue and was improperly considered.
No effort was made to evaluate the multitude of facts and circumstances supporting Dyer’s position. DOC made no mention of the discrepancies surrounding the restraining order, or the fact that it pertained only to Dyer’s first wife, or was issued almost 30 years ago when Dyer was serving his country in Vietnam.
The DOC superintendent also notes Dyer’s conviction concerning his wife was overturned, but says “[w]hile I cannot conclude inmate Dyer’s innocence or guilt in this incident, I cannot ignore the facts presented, which suggest he committed domestic violence against his second wife.” Resp’t’s Suppl. Br., App. J (Letter, Sept. 30, 1999). This is a non sequitur since innocence is inconsistent with program disqualification. DOC ignores that the conviction was set *411aside because the nature of the prosecution made it more likely he would be wrongly convicted by joining the counts, the evidence questioning the truthfulness of Dyer’s second wife and her claims, and the fact that the case was never retried although it could have been.
The DOC determination rises to the level of willful and unreasoning action when viewed in light of (1) the failure to factually establish Dyer had in fact engaged in domestic violence, even historically; (2) Dyer’s 11 years of successful participation in the EFV program; (3) the fact that the contested allegations of domestic violence decades ago have nothing to do with his current family or visitors; (4) his status was revoked on the same record that initially allowed him to qualify; (5) DOC based its revocation on contested facts beyond the scope of the regulation, including a reversed conviction and unrelated behavior; and finally, (6) the clearly stated policies and purpose underlying the EFV program, because of which this court mandated DOC reevaluate the revocation.
We were correct when we noted the “apparent absence of any substantial correctional purpose to be served by termination” in this case. In re Personal Restraint of Dyer, No. 67673-9, Order (Wash. Sept. 10, 1999). Sadly, this court now refuses to heed its own insight.
CONCLUSION
Arbitrary denial of EFV rights contrary to DOC policies justifies granting Dyer’s PRP and ordering DOC to reinstate his EFV privileges or, at minimum, justifies remanding the case for a reference hearing to resolve issues of fact pertaining to whether Dyer engaged in domestic violence 20 years ago.
This court has an obligation to jealously guard the rights of all of our citizens, even those incarcerated, especially when those rights are violated as a result of the “ ‘day-today management of prisons.’ ” Majority at 393 (quoting Sandin, 515 U.S. at 482). These prisoners and their fami*412lies have nowhere to turn but the courts to redress their grievances. By allowing the arbitrary revocation of a regulatory entitlement from this prisoner and his family, the majority has walked away from its responsibility to protect the legal rights of these citizens and whitewashed a travesty of justice. As stated by Justice Brennan in O’Lone v. Estate of Shabazz, 482 U.S. 342, 355, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987):
When prisoners emerge from the shadows to press a constitutional claim .... they speak the language of the charter upon which all of us rely to hold official power accountable.
I therefore dissent.
Alexander, C.J., and Johnson, J., concur with Sanders, J.