ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William K. Zimmerman, pro se Jeffrey A. Modisett
Attorney General of Indiana
AMICUS CURIAE
E. Paige Freitag Jon Laramore
Kenneth J. Falk Deputy Attorney General
Indiana Civil Liberties Union Indianapolis, Indiana
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
WILLIAM K. ZIMMERMAN ) Supreme Court No.
Plaintiff-Appellant, ) 77S01-0008-CV-00478
)
v. ) Court of Appeals No.
) 77A01-9909-CV-318
STATE OF INDIANA, EDWARD L. )
COHN, BRUCE LEMMON, )
Defendant-Appellee. )
)
________________________________________________
APPEAL FROM THE SULLIVAN CIRCUIT COURT
The Honorable P.J. Pierson, Judge
Cause No. 77C01-9907-CP-213
________________________________________________
On Petition To Transfer
June 27, 2001
DICKSON, Justice
William K. Zimmerman, an inmate at the Wabash Valley Correctional
Facility, tested positive for cannabinoids, in violation of prison rules
against possessing or using controlled substances. As part of his penalty
for this violation, his visitation privileges were restricted to non-
contact visits for six months. Zimmerman filed an action in the trial
court seeking to compel the State of Indiana Department of Correction;
Edward Cohn, the Commissioner of the Indiana Department of Correction; and
Bruce Lemmon, the Superintendent of Wabash Valley Correctional Facility, to
cease imposing this restriction upon his prisoner visitation privileges.
The trial court dismissed Zimmerman's complaint, in part concluding that it
lacked jurisdiction because "there is no statutory or constitutional right
to judicial review of prison administrative disciplinary actions." Record
at 23. The Court of Appeals reversed. Zimmerman v. State, 727 N.E.2d 714
(Ind. Ct. App. 2000). We granted the defendants' petition to transfer.
Pursuant to our grant of transfer, Zimmerman's appeal is before this Court
as if originally filed herein. Ind.Appellate Rule 11(B)(3).[1]
Zimmerman asserts that his mandate action is authorized by Indiana
Code § 34-27-3-1 which provides, "An action for mandate may be prosecuted
against any . . . public . . . officer, or person to compel the performance
of any: (1) act that the law specifically requires; or (2) duty resulting
from any office, trust, or station." He seeks an order directing the
defendants to comply with Indiana Code § 11-11-5-4(4), which states "The
department [of correction] may not impose the following as disciplinary
action: . . . (4) Restrictions on clothing, bedding, mail, visitation,
reading and writing materials, or the use of hygienic facilities, except
for abuse of these. . . ." Ind.Code § 11-11-5-4. The State argues that
Zimmerman may not obtain through a request for mandamus the exact same
relief—judicial review of prison disciplinary action—prohibited by Hasty v.
Broglin, 531 N.E.2d 200 (Ind. 1989).
In Hasty, this Court declared:
Neither Indiana statutes nor common law rules establish Hasty's right
to judicial review of prison disciplinary action. Absent statutory
authorization, Indiana courts have declined to review a decision of a
penal institution to take away an inmate's good-time credit for a
prison infraction. Riner [v. Raines], 274 Ind.[113], 115, 409 N.E.2d
[575], 577 [(1980)] . The current system of administrative review by
policy makers and executive officers within the correction department
establishes a fair procedure to resolve disputes, one adequate under
due process.
Hasty, 531 N.E.2d at 201. In Riner, we expressly held that there is "no
constitutionally protected right to judicial review of the decisions of
fact-finding and appellate tribunals presently conducting disciplinary
proceedings within the prison system." 274 Ind. at 118-19, 409 N.E.2d at
579.
In the eleven years since Hasty, the Indiana General Assembly has not
enacted any statutory authorization providing for the judicial review of a
disciplinary decision of a penal institution. Regardless of the procedural
vehicle employed—whether mandate to compel compliance with statute or
direct judicial review of a prison disciplinary decision—Zimmerman is
seeking judicial intervention in the disciplinary actions of the Department
of Correction. We decline to retreat from the principles and policies
reflected in Hasty and Riner. The relief sought is not available in
Indiana courts.
We affirm the trial court.
SHEPARD, C.J., and SULLIVAN, J., concur. BOEHM, J., concurs in
result with separate opinion. RUCKER, J., concurs in result with separate
opinion.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William K. Zimmerman, Pro Se Karen Freeman-Wilson
Carlisle, Indiana Attorney General of
Indiana
AMICUS CURIAE Jon Laramore
E. Paige Freitag Deputy Attorney General
Kenneth J. Falk Indianapolis, Indiana
Indiana Civil Liberties Union
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
WILLIAM K. ZIMMERMAN, )
)
Appellant (Plaintiff Below), ) Indiana Supreme Court
) Cause No. 77S01-0008-CV-478
v. )
) Indiana Court of Appeals
STATE OF INDIANA, et al., ) Cause No. 77A01-9909-CV-318
)
Appellees (Defendants Below). )
__________________________________________________________________
APPEAL FROM THE SULLIVAN CIRCUIT COURT
The Honorable P. J. Pierson, Judge
Cause No. 77C01-9907-CP-213
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
June 27, 2001
BOEHM, Justice, concurring in result.
I agree with the majority that the trial court correctly dismissed
Zimmerman’s mandamus action. I reach that conclusion mainly because
Zimmerman did not preserve what seem to me to be the interesting questions
raised by these facts. Zimmerman made no claim that Indiana Code section
11-11-5-4 grants him a statutory right which is protected by Article I,
Section 12’s open courts clause.
We are left, then, with two open questions for another day. First,
does Indiana Code section 11-11-5-4, which prohibits the Department of
Corrections from imposing certain disciplinary actions, create a statutory
right? If so, does Article I, Section 12 of the Indiana Constitution
guarantee inmates a right to judicial review of disciplinary proceedings
allegedly in violation of that statute?
Indiana Code section 11-11-5-4 provides that “The department [of
corrections] may not impose the following as disciplinary action: . . . (4)
Restrictions on clothing, bedding, mail, visitation, reading and writing
materials, or the use of hygienic facilities, except for abuse of these. .
. .” This statute effectively carves out a category of inmate privileges
that may not be revoked through disciplinary proceedings. If the
legislature has given inmates a statutory right, albeit a right subject to
a number of restrictions, this case presents an issue not raised by Hasty
v. Braglin 531 N.E.2d 200 (Ind. 1989). The inmate in Hasty was docked good
time following an administrative hearing, a process contemplated by the
sentencing structure of the Indiana Criminal Code. Ind. Code § 35-50-6-5
(1998). Hasty noted that “[n]either Indiana statutes nor common law rules
establish Hasty’s right to judicial review of prison disciplinary action.
Absent statutory authorization, Indiana courts have declined to review a
decision of a penal institution to take away an inmate’s good-time credit
for a prison infraction.” Id. at 201. The Hasty holding, however, does
not address whether Zimmerman has recourse to the state courts to address
an alleged violation of a right conferred by statute.
Hasty also did not address the potential application of Article I,
Section 12 of the Indiana Constitution. That section provides, “All courts
shall be open; and every person, for injury done to him in his person,
property, or reputation, shall have remedy by due course of law.” Although
there is no case law in Indiana directly on this point, in the view of
some, an open courts clause of this sort “promises that for injuries
recognized elsewhere in the law, the courts will be open for meaningful
redress.” Jennifer Friesen, State Constitutional Law § 6-2(c) (2d ed.
1996). The implications of this constitutional provision for an inmate’s
claim of violation of a statutory right remain unaddressed by this Court.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
WILLIAM K. ZIMMERMAN KAREN M. FREEMAN-WILSON
Carlisle, Indiana Attorney General of Indiana
ATTORNEYS FOR JON LARAMORE
AMICUS CURIAE Deputy Attorney General
Indianapolis, Indiana
E. PAIGE FREITAG
KENNETH J. FALK
Indiana Civil Liberties Union
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
WILLIAM K. ZIMMERMAN, )
)
Appellant-Plaintiff, ) Supreme Court Cause
Number
) 77S01-0008-CV-478
v. )
) Court of Appeals Cause Number
STATE OF INDIANA, EDWARD L. COHN, ) 77A01-9909-CV-318
BRUCE LEMMON, )
)
Appellees-Defendants. )
APPEAL FROM THE SULLIVAN CIRCUIT COURT
The Honorable P.J. Pierson, Judge
Cause No. 77C01-9907-CP-213
ON PETITION TO TRANSFER
June 27, 2001
RUCKER, Justice, concurring in result
In Hasty v. Broglin, 531 N.E.2d 200 (Ind. 1989), this Court reiterated
“there is no constitutionally protected right to judicial review of
individual decisions of the prison disciplinary system.” Id. at 201
(citing Riner v. Raines, 274 Ind. 113, 409 N.E.2d 575 (1980)). This Court
offered the following explanation for such a policy, “The current system of
administrative review by policy makers and executive officers within the
correction department establishes a fair procedure to resolve disputes, one
adequate under due process.” Id. Although the current system may be
adequate under federal due process standards, I do not believe that it is
adequate under the Open Courts provision of the Indiana Constitution. See
McIntosh v. Melroe Co., a Div. of Clark Equip. Co., Inc., 729 N.E.2d 972,
975 (Ind. 2000) (holding that the Open Courts provision of the Indiana
Constitution is not equivalent to the Due Process Clause of the United
States Constitution)
Article 1, Section 12 of the Indiana Constitution provides in part,
“All courts shall be open; and every person, for injury done to him in his
person, property, or reputation, shall have remedy by due course of law.”
We held in Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), that the Open
Courts provision provides “a right of access to the courts.” Id. at 1283.
Although this right is not unlimited, see id., I believe that a blanket
prohibition of judicial review of disciplinary decisions of penal
institutions certainly runs afoul of this provision.
Nonetheless, I agree with the majority that Zimmerman is not entitled
to relief. Mandate is an extraordinary remedy viewed with extreme
disfavor. State ex rel. Civil City of South Bend v. Court of Appeals of
Indiana-Third Dist., 273 Ind. 551, 406 N.E.2d 244, 245 (1980). A defendant
must have failed to perform a clear, absolute, and imperative duty imposed
by law, and a plaintiff must have a clear and unquestioned right to relief.
Id. at 246; State ex rel. Drost v. Newton Superior Court, 275 Ind. 297,
416 N.E.2d 1247, 1250 (1981). According to Indiana Code section 11-11-5-
4(4), if the controlled substance that Zimmerman tested positive for came
from outside the prison, then the Department of Correction was warranted in
restricting his visitation. Because of the factual nature of such an
inquiry, it cannot be said that Zimmerman has a clear and unquestioned
right to relief. For the foregoing reasons I agree with the result reached
by the majority, namely, the judgment of the trial court should be
affirmed.
-----------------------
[1] New Ind.Appellate Rule 58(A).