(dissenting) — The decision of the majority in this case today places a heavy and useless burden on prison officials. Far from being required by Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), it is contrary to the principle implicitly applied in that case (and expressly applied in Wolff v. McDonnell, 418 *631U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974)) that constitutional interpretations embodying new procedural requirements should be applied prospectively only, where to make them retroactive would unduly burden the administration of the criminal law system. In Wolff, the Supreme Court said:
The question of retroactivity of new procedural rules affecting inquiries into infractions of prison discipline is effectively foreclosed by this Court's ruling in Morrissey that the due process requirements there announced were to be "applicable to future revocations of parole," 408 U. S., at 490 (emphasis supplied). Despite the fact that procedures are related to the integrity of the factfinding process, in the context of disciplinary proceedings, where less is generally at stake for an individual than at a criminal trial, great weight should be given to the significant impact a retroactivity ruling would have on the administration of all prisons in the country, and the reliance prison officials placed, in good faith, on prior law not requiring such procedures. During 1973, the Federal Government alone conducted 19,000 misconduct hearings, as compared with 1,173 parole revocation hearings, and 2,023 probation revocation hearings. If Morrissey-Scarpelli [Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973)] rules are not retroactive out of consideration for the burden of federal and state officials, this case is a fortiori. We also note that a contrary holding would be very troublesome for the parole system since performance in prison is often a relevant criterion for parole. On the whole, we do not think that error was so pervasive in the system under the old procedures as to warrant this cost or result.
Wolff, at 573-74.
It is significant that the court in Morrissey did not automatically order a hearing for the petitioners in that case but rather remanded the case with directions that the district court make findings on the procedures actually followed. The court said that if it should be determined that the petitioners had admitted to the parole board authorities that they had committed parole violations, and if those violations were "found [by the court] to be reasonable *632grounds for revoking parole under state standards, that would end the matter." Morrissey, at 490.
It seems clear to me that these words of the United States Supreme Court upon the very subject now before us, show the proper disposition to be made of this case, and all others where parole revocations occurred before our decision in In re Akridge, 90 Wn.2d 350, 581 P.2d 1050 (1978), was published.
If the fact of a violation has been established, as by a conviction in a court of justice, and the court can say that such a violation affords reasonable grounds for revoking parole, the substance of due process has been afforded. It seems hardly open to quibble that conviction of a new crime gives reasonable ground to believe that the individual will be likely to commit further crimes if left at large. If he cannot abide by the law in order to maintain his parole in the first place, it is hardly to be predicted that he will be apt to abide by the conditions of his parole in the future. There may be an exceptional case, but the probability of it hardly warrants the kind of burden the majority places on prison authorities here.
Furthermore, as the United States Supreme Court aptly observed in Wolff, to allow hearings upon a matter which has occurred long before would be very troublesome for the parole system, since performance in prison is a relevant criterion for parole. I take this to mean that once parole has been revoked and time has passed, prison officials should not be expected to make subsequent parole decisions on the basis of past conduct alone, but should be able to consider the conduct of the individual after his return to prison.
I also disagree with the majority's conclusion that prison officials had no right to rely on a ruling of the Acting Chief Justice of this court, issued upon a habeas corpus proceeding, where no contrary judicial opinion existed. It must be pointed out that the parole violations involved in Morrissey had not resulted in criminal convictions. For aught that appears in the opinion, no charges had been filed against the petitioners. While the case does stress the importance *633of the exercise of parole board discretion in deciding whether the proven acts of the parolee are serious enough to warrant revocation, it does not consider and offers no opinion upon the question whether that decision can be made by the legislature itself, instead of delegating it to the parole board. In other words, can the legislature establish a conclusive presumption that a conviction of a crime warrants revocation? It seems to me most likely that the Supreme Court would answer that question in the affirmative, the reasonableness of the presumption being hardly open to serious question. To say the least, the proposition is arguable.
RCW 9.95.120 reflects a legislative finding that conviction of a crime while on parole does indeed warrant revocation, and since this is not a patently unreasonable finding and it was not on its face contrary to the Supreme Court's holding in Morrissey, the prison officials were justified relying upon it until its validity was successfully challenged.
It is obvious that the question whether this statutory provision was constitutional was still open when Akridge came before this court. The majority places too great a burden upon the administrators of the prison system when they expect them to make their own decisions as to the constitutionality of statutes which have not been reviewed in court. They tell us that governmental officials may not rely upon the written law. To me this is an insidious doctrine, not at all conducive to the orderly conduct of governmental affairs.
I would hold that the decision in In re Akridge, 90 Wn.2d 350, 581 P.2d 1050 (1978), like that in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), applies prospectively only, and would deny the petition.