(dissenting) — The question is whether the Department of Corrections (DOC) may unilaterally rehear a serious prison disciplinary infraction while a personal restraint petition (PRP) challenging the infraction is pending in the appellate court. While I agree with the majority that rehearing an infraction does not violate an inmate’s guaranty against double jeopardy, I do not agree that DOC may unilaterally conduct such a rehearing without first being granted permission from the court.
As the majority recognizes, the extent of DOC’s authority to rehear a prison infraction while a PRP challenging the infraction is pending in the appellate court was addressed in In re Personal Restraint of Leland, 115 Wn. App. 517, 61 P.3d 357, review denied, 149 Wn.2d 1025 (2003). Majority at 161. There Leland, a prison inmate, filed a PRP in the Court of Appeals challenging a prison infraction for testing positive for use of unauthorized drugs. Alleging numerous errors, Leland requested the infraction either be expunged from his record or that he receive a constitutionally adequate disciplinary hearing.
DOC responded to Leland’s PRP by notifying the court that it would conduct a rehearing of the infraction. Notwithstanding DOC’s response, the court directed DOC to respond to the merits of Leland’s PRP. DOC nonetheless conducted a rehearing and notified the court that although some of the allegations in Leland’s PRP had merit, its rehearing of the infraction rendered his PRP moot. The court disagreed, concluding the “DOC lacks jurisdiction or authority to summarily conduct a rehearing of a personal restraint petition pending in the Court of Appeals.” Leland, 115 Wn. App. at 529. The court relied primarily on the Rules of Appellate Procedure, Title 16, reasoning that once *168a PRP is filed in the appellate court, that court has original jurisdiction over the PRP. According to the court, DOC could not, without the court’s permission, conduct a rehearing of the underlying infraction before the appellate court has either granted or dismissed the PRP. Thus, the court held the rehearing was a nullity, granted Leland’s PRP, and vacated the infraction.
Leland is persuasive. Rules of Appellate Procedure 16.3 through 16.15 establish the procedure when an inmate files a PRP for the first time in the appellate court. RAP 16.1(c). In cases where the death penalty has not been decreed, the Supreme Court and Court of Appeals “have original concurrent jurisdiction” over the PRP. RAP 16.3(c). RAP 16.9 provides in relevant part:
The respondent must serve and file a response within 30 days after the petition is served, unless the time is extended by the commissioner or clerk for good cause shown, or unless the court can determine without requiring a response that the petition should be dismissed under RCW 10.73.140. The response must answer the allegations in the petition. . . . Respondent should also identify in the response all material disputed questions of fact.
In addition, RAP 16.11(b) grants the chief judge of the appellate court the authority to direct or order the steps necessary to decide the appropriate disposition of the petition. There is no provision in Title 16 or elsewhere suggesting DOC may rehear an infraction while a PRP challenging the infraction is pending in the appellate court.
Yet the majority rejects the sound reasoning of Leland, claiming the court failed to consider RAP 16.4(d). See majority at 162-63.2 That rule provides that “[t]he appellate *169court will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances.” RAP 16.4(d). This begs the question whether a rehearing is an adequate remedy under the circumstances presented here. Without analysis the majority simply concludes “DOC’s decision to expunge the record in response to petitioner’s PRP and to hold a rehearing was an adequate remedy under the circumstances.” Majority at 163. It is entirely unclear how the majority arrived at this conclusion given the fact that the remedy petitioner David Higgins requests is “overturn” the infraction, “dismiss it with prejudice,” and restore his good conduct time. Pers. Restraint Pet. at 13. DOC has not once responded to the merits of Higgins’s claims.
Certainly there are many circumstances where rehearing a prison infraction would be the appropriate remedy to a PRP challenging the infraction. Indeed if the exclusive remedy an inmate requests is a rehearing, DOC may assuredly decide to provide one. But where, as here, an inmate requests the infraction be expunged from his or her record and opposes DOC’s attempt to rehear the infraction, the appellate court must, at some point, consider whether a rehearing would be an appropriate remedy under the circumstances.
The Rules of Appellate Procedure again provide the best guide for resolving this issue. RAP 16.9 provides, with one limited exception, that DOC must respond to a PRP within 30 days and its response “must answer the allegations in the petition.” (Emphasis added.) If DOC seeks to rehear an infraction challenged by a PRP and the inmate opposes rehearing, its response must still answer the allegations in the PRP but may also include a request for permission to rehear the infraction along with reasons supporting its request. See RAP 16.9. The inmate may respond to DOC’s request within 30 days. See RAP 16.10(a)(2). The chief judge may then, under RAP 16.11(b), enter orders necessary to determine the petition on the merits. But without DOC’s substantive response to the PRP, the chief judge *170cannot adequately determine whether a rehearing would be an appropriate remedy if the inmate prevailed on his or her PRP.3
I also question the majority’s assertion that allowing DOC to unilaterally rehear a challenged prison infraction provides the inmate with a speedier remedy than he or she would otherwise receive. See majority at 166. While under certain circumstances this may be true, it presupposes that a rehearing is the proper remedy, which as discussed above is not always clear, and that the rehearing will be conducted in a legally sufficient manner. But if errors are made at the rehearing, the inmate’s access to judicial review will have been substantially delayed. See, e.g., Preston v. Coughlin, 164 A.D.2d 101, 103, 562 N.Y.S.2d 867 (1990) (recognizing Department of Correctional Services’ sua sponte rehearing of challenged prison infraction “impermissibly delayed” inmate’s “access to the courts”). The inmate must wait until the rehearing becomes final and will then have to file a new PRP challenging the result of the rehearing. See majority at 166; see also In re Pers. Restraint of Plunkett, 57 Wn. App. 230, 232, 788 P.2d 1090 (1990) (involving inmate who filed three successive PRPs challenging three successive hearings on same prison infraction). Although I too “decline to presume . . . bad faith in the DOC,” majority at 166, I am cognizant of the fact that this process could potentially go on for as long as DOC wished to sanction an inmate but avoid judicial review of the infraction.
I would hold DOC did not have the jurisdiction and authority to unilaterally rehear Higgins’s infraction while his PRP challenging that infraction was pending in this *171court. To that extent, I would reach the merits of his PRP and adjudicate the matter based on the record before the court.
I therefore dissent.
Alexander, C.J., and Chambers, J., concur with Sanders, J.
The majority also attempts to undercut Leland by asserting the court “relied on the principles of double jeopardy in holding that the ‘DOC lacks jurisdiction or authority to summarily conduct a rehearing of a personal restraint petition pending in the Court of Appeals.’ ” Majority at 161 (quoting Leland, 115 Wn. App. at 529-30). But the majority misreads Leland. Although Leland mentioned double jeopardy principles in its analysis, the basis for its decision was its analysis of the Rules of Appellate Procedure and its apparent concern about possible manipulation of the appellate process. See Leland, 115 Wn. App. at 526-31.
Requiring DOC to petition the court for permission before rehearing an infraction challenged by a pending PRP provides important judicial oversight of DOC’s prison disciplinary process. The need for this requirement is buttressed by the various situations where permitting a rehearing would be inappropriate. See, e.g., In re Pers. Restraint of Krier, 108 Wn. App. 31, 45, 29 P.3d 720 (2001) (granting PRP and prohibiting rehearing where petitioner established actual prejudice arising from failure to receive notice of cell confinement); see also Herring v. Gorczyk, 173 Vt. 240, 789 A.2d 955, 962 (2001) (reversing prison violation without opportunity for rehearing where alleged violation was based on confidential information and there was no independent determination of reliability).