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Zimmerman v. State

Court: Indiana Supreme Court
Date filed: 2001-06-27
Citations: 750 N.E.2d 337
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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).