(dissenting)—The Board of Prison Terms and Paroles (Board) should be constitutionally required to appoint counsel for an indigent inmate before increasing the inmate's minimum sentence at a disciplinary hearing held pursuant to RCW 9.95.080. I would reverse.
Though the State is not constitutionally obligated to provide counsel in all cases, it should do so where the indigent probationer or parolee may have difficulty in presenting his version of disputed facts without the examination or cross examination of witnesses or the presentation of complicated documentary evidence. Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), interpreting the due process protection afforded in probation or parole revocation hearings under Morrissey v. Brewer, 408 U.S. 471, 489, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972).
The majority maintains a Board hearing under RCW 9.95.080 is analogous to the in-system disciplinary hearing *784described in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). In Wolff, the prison inmates were faced with possible withholding of "good-time credits" for alleged misconduct within the institution. The Court held the inmates had no right to retained or appointed counsel in such proceedings, although counsel substitutes should be provided in certain cases. The majority apparently bases its analogy to Wolff on these premises: (1) the loss suffered by an inmate at a Board disciplinary hearing is no greater than that of an inmate losing "good-time credits" and (2) Board disciplinary hearings are not contested cases like parole revocations of Morrissey, but are merely behavioral adjustment tools as in Wolff, and the insertion of counsel would change the nature of the hearings. I cannot accept this misguided logic.
The majority confuses the Board's power not to certify good time with its ability to take away future good time. The two functions are controlled by different statutes, have considerably different impacts on the individual and, appropriately enough, invoke different due process considerations. The only statute that authorizes the Board to take away future good time is RCW 9.95.080. In Monohan v. Burdman, 84 Wn.2d 922, 530 P.2d 334 (1975), this court held that the right of minimal due process hearings, such as were guaranteed to probationers and parolees under Gag-non and Morrissey, should be accorded to proceedings under RCW 9.95.080 leading up to the cancellation of a previously established tentative parole release date for reasons other than inability to develop an acceptable parole rehabilitation plan.
The majority confuses the obligation of the Board under RCW 9.95.080 with the powers conferred upon it under RCW 9.95.070, the type of statute under consideration in Wolff. RCW 9.95.070 allows the Board to certify past good time in an effort to adjust inmates' daily behavior, and is far different from RCW 9.95.080, which seeks to severely punish inmates for serious infractions. The Board may not take away future good time absent a hearing pursuant to *785RCW 9.95.080.
The disciplinary hearings in the present case are quasi-judicial adversary hearings akin to the parole revocation hearings in Morrissey. The potential loss suffered by the inmates here is far greater than that imposed upon the inmates in Wolff. The majority in fact concedes "[t]he sanctions which may be imposed under an RCW 9.95.080 Parole Board disciplinary hearing are far more serious than those prescribed under institutional disciplinary hearings. See WAC 275-88-105." Majority opinion, at 778. Additionally, the term of imprisonment may be extended only after discrete factual findings. The Board itself acknowledged the adversary nature of the disciplinary proceedings when it adopted Board rule 4.070(4), which allows inmates who can afford counsel to be represented.
The same rationale we articulated in Monohan is applicable here:
We pause to observe, as have several other courts, that the initial fixing of a tentative parole release date is of a discretionary nature and does not involve a due process hearing. . . . However, as we have noted, once parole or a promise of parole has been granted in the form of a tentative release date, we are satisfied that the prospective parolee enjoys a unique status and is deserving of minimal due process safeguards before cancellation of that date for reasons other than failure to develop an adequate rehabilitation plan.
(Italics mine.) Monohan, at 929.
The right to counsel is required "when procedural fairness demands it." Tetro v. Tetro, 86 Wn.2d 252, 253, 544 P.2d 17 (1975). Without counsel, the inmates here are left alone to prepare a defense against a charge of rioting that occurred almost 100 miles away. The majority in effect expects these young inmates, who never even graduated from high school, to present their versions of a disputed set of facts where the presentation requires the examining and cross-examining of witnesses and the offering or dissecting of complex documentary evidence, all without benefit of counsel. This is precisely the situation where procedural *786fairness demands the right to counsel.
I would reverse.
Utter, J., concurs with Dore, J.
Reconsideration denied April 20, 1983.