Colvin v. Inslee

467 P.3d 953, 195 Wash. 2d 879

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JULY 23, 2020 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON JULY 23, 2020 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

SHYANNE COLVIN, SHANELL DUNCAN, TERRY KILL, LEONDIS BERRY, and THEODORE ROOSEVELT RHONE,

Petitioners, NO. 98317-8

v. EN BANC JAY INSLEE, Governor of the State of Washington, and STEPHEN SINCLAIR, Secretary of the Washington State Department of Corrections, July 23, 2020 Filed ________________

Respondents.

STEPHENS, C.J.⸺This matter came before us on a petition for a writ of

mandamus from five inmates serving criminal sentences at different Washington

Department of Corrections (Department) facilities. We retained jurisdiction because

of the extraordinary nature of the relief petitioners seek—and because of the

extraordinary danger COVID-19 (coronavirus disease) poses to inmates in

Washington’s prisons. But mandamus is not the answer for every emergency, and

it cannot deliver the relief petitioners seek here. Colvin et al. v. Inslee et al., 98317-8

Mandamus is a term familiar to attorneys and the judiciary, but not most

members of the public. In plain English, petitioners ask the court to force Governor

Jay Inslee and Department of Corrections Secretary Stephen Sinclair to reduce the

prison population by ordering the immediate release of three categories of offenders.

But the writ they seek asks us to encroach on the executive branch and exceed the

court’s authority; it would require the judiciary to supervise the executive based on

policies the legislature never approved, in direct violation of long recognized

separation of powers principles. Without a showing an official in the executive

branch has failed to perform a mandatory nondiscretionary duty, courts have no

authority under law to issue a writ of mandamus—no matter how dire the

emergency. The petitioners alternatively seek leave to amend their petition by filing

a personal restraint petition. But on the record before us, they have not shown that

the respondents have acted with deliberate indifference to the extreme risk that

COVID-19 creates for the incarcerated. Amending their mandamus petition would

therefore be futile. For these reasons, we dismiss the mandamus action and deny the

motion to amend.

FACTS

The record here differs from a typical case in the Washington Supreme Court.

We do not have the benefit of any hearings, factual findings, credibility

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determinations, or discovery. Rather, the parties agreed on a record that mainly

includes descriptions of the prison conditions, expert opinions on the risks that

COVID-19 presents in the prison environment, and the petitioners’ declarations as

to their individual situations. For purposes of our decision, we accept the petitioners’

factual descriptions as true. The petitioners claim close confinement creates a

substantial risk of harm because of the current public health emergency caused by

COVID-19. These concerns are legitimate and well founded. The current widely

reported medical evidence suggests that the COVID-19 risks of serious

complications or death are highest for offenders over age 50 and those with certain

preexisting medical conditions, but it can also be serious for younger people and

those in good health. And serious outbreaks have occurred at other prisons and jails

nationwide.1

Concerns about COVID-19 are all the more serious because our

understanding of this public health threat is evolving and incomplete. The virus’s

virulence and severity are unclear because there has been insufficient time to develop

accurate, reliable, and widespread testing both for the virus and the presence of its

1 Linda So & Grant Smith, In Four U.S. State Prisons, Nearly 3,300 Inmates Test Positive for Coronavirus⸺96% Without Symptoms, REUTERS (April 25, 2020), https://www.reuters.com/article/us-health-coronavirus-prisons-testing-in/in-four-u-s-state -prisons-nearly-3300-inmates-test-positive-for-coronavirus-96-without-symptoms-idUSK CN2270RX [https://perma.cc/JGM4-CQF9].

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antibodies. Without doubt, the prison system faces a daunting challenge from a

serious public health threat.

Medical experts recommend limiting the spread of the virus by social

distancing, frequent hand washing, and wearing masks or face coverings. Experts

currently think the virus is unlikely to spread from person to person at a distance of

more than six feet, and thus the primary mitigating measure has been social

distancing. Based on this advice, beginning in March 2020, the governor has issued

several proclamations through his emergency powers, all designed to limit the spread

of the virus as much as reasonably possible.

Prisons are not designed to easily accommodate social distancing. To combat

the virus in this setting, the respondents have developed and implemented a

multistep plan. The Department issued social distancing guidelines to offenders in

early March 2020, started screening visitors on March 6, and stopped visits on

March 13, all in an effort to prevent the virus from spreading into facilities. But

social distancing is difficult, if not impossible, in some prison settings due to

logistics and population. The Department houses the named petitioners in various

facilities throughout the state.

Each petitioner argues that we should grant their immediate release because

they fall into one of three categories of risk: (1) those with preexisting medical

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conditions complicated by COVID-19, (2) those over age 50, and (3) those who

already have release dates pending within the next 18 months. Three petitioners fall

within the first group. Shyanne Colvin was 7 months pregnant when the petition

was filed, and she reported possible complications because she suffered a grand mal

seizure and required preventive seizure medication. Leondis Berry is 46 years old

and has serious heart conditions; he has had four heart surgeries and needs to use a

pacemaker. He reports that he has housing available with his wife upon release.

Theodore Rhone is 62 years old and has diabetes and high blood pressure. Rhone’s

declaration does not show what his housing situation would be if released.

In the second category, Terry Kill is 52 years old and reports that he has

housing available with his wife. Shanell Duncan falls within the third category. He

is 40 years old and has an anticipated release date of December 27, 2020. He reports

that he has stable housing available with a partner in Spokane.

Neither the briefing nor the agreed record gives full information on the

petitioners’ criminal history nor any history of prison discipline. Colvin pleaded

guilty to delivery of a controlled substance (methamphetamine) and a corresponding

special allegation that she or an accomplice committed the offense in a county jail;

she was thus subject to a mandatory 18-month sentence enhancement under RCW

9.94A.533(5)(a). See State v. Colvin, No. 36618-9-III, slip op. at 1 (Wash. Ct. App.

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Nov. 14, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/366189_

unp.pdf. Records provided by amicus briefing show that Berry was convicted of

multiple counts of first and second degree robbery. Rhone is serving a life sentence

as a persistent offender and has a conviction for first degree robbery with a firearm.

Victim impact statements included with amicus briefing describe Kill as having

three felony convictions in Snohomish County, including a burglary of a vacation

home. And records attached to the amicus briefing show that Duncan has

convictions for third degree assault, unlawful possession of a firearm, robbery, and

fourth degree assault involving domestic violence.

The petitioners claim crowded prison conditions do not allow for effective

social distancing, creating an unreasonable risk of contracting COVID-19. At the

time of filing, no member of the prison population in Washington had tested positive

for the virus. A few days later, though, one prisoner at Monroe Correctional

Complex (MCC) tested positive. In an apparent reaction to the news and fears of an

outbreak, a significant disturbance ensued at MCC. The petitioners sought

emergency relief, and we set an accelerated briefing schedule to consider their

request. We also ordered the respondents to immediately exercise their authority to

take all necessary steps to protect the health and safety of the prison population from

COVID-19, and directed the respondents to file a report on their plans for

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safeguarding prisoners from the disease. This order neither granted a writ of

mandamus nor required any specific remedy. Instead, we intended the order to

preserve and protect the petitioners’ rights and claims to every extent possible

pending oral argument.

As directed, the respondents filed reports detailing their safety plan and the

steps taken. Besides the steps discussed above, the Department has tried to follow

United States Center for Disease Control and Prevention guidelines by administering

screening protocols, creating special procedures for transporting offenders,

implementing physical distancing protocols, providing free soap and handwashing

facilities, and issuing instructions for facility cleaning and sanitizing. These

protocols included an order that all facilities ensure that all staff and offenders wear

face coverings. The Office of Corrections Ombuds toured MCC and concluded that

it was unable to effectively impose social distancing with its population, noting that

both staff and incarcerated individuals asked that some offenders be released to

increase the space available. Photographs from the tour show that although

offenders and staff have surgical face masks, the common areas can become

crowded. At oral argument, the respondents explained that greater space was

available but the pictured offenders had chosen to congregate in the common areas

and hallways. On April 15, 2020, the governor issued a proclamation suspending

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various statutory hurdles to the early release of prisoners, commuting sentences for

and ordering the release of certain nonviolent offenders. Proclamation by Governor

Jay Inslee, No. 20-50 (Wash. Apr. 15, 2020), https://www.governor.

wa.gov/sites/default/files/proclamations/20-50%20-%20COVID-19%20Reducing

%20Prison%20Population.pdf [https://perma.cc/C5J8-7KQ2]. The Department has

since reported that most of those commuted offenders have been released.2

At oral argument, the respondents suggested that the prison population had

been reduced from almost 18,000 to just over 16,000. They also informed the court

that they planned to release Colvin into a home-release parenting program within

one or two weeks.3 They also reported that more than a dozen offenders at MCC

had tested positive for the virus. One week after oral argument, the Department

website clarified that 15 MCC inmates had tested positive and that one inmate on a

separate work release program had also tested positive. Although no offenders at

2 The petitioners argue that the respondents ultimately decided to release prisoners only because of this court’s oversight. Although the release occurred after the lawsuit was filed, this court did not order the release of any offenders. And, contrary to the unjustified political attacks against our dissenting colleagues, no justice would have ordered state officials to immediately release serious violent offenders en masse. 3 The Department did release Colvin following oral argument, but Colvin used methamphetamine in violation of the conditions of her release and has since been returned to prison. This unfortunate fact illustrates the difficulties inherent in determining which inmates should be released, even for the Department, which has expertise in this area. The dissent would have this court manage those decisions instead, but fails to explain how⸺or why—this court’s inmate release decisions would be different from, better than, or more just than those reached by the governor and the secretary.

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any other facilities had tested positive at that time, dozens of inmates and corrections

officers have since been diagnosed with COVID-19 at the Coyote Ridge Corrections

Center (CRCC). See COVID-19 Data, WASH. DEP’T OF CORR. (July 9, 2020)

https://www.doc.wa.gov/corrections/covid-19/data.htm. The number of positive

test results continues to increase: after oral argument, the Department reported that

58 offenders tested positive at MCC, 231 tested positive at CRCC, 2 tested positive

at the Washington State Penitentiary, and 1 tested positive at the Washington

Corrections Center. Id. The tragic deaths of Berisford Anthony Morse (a 65-year-

old corrections officer at MCC), Victor Bueno (a 63-year-old inmate at CRCC), and

William Bryant (a 72-year-old inmate at CRCC) underscore the serious danger

COVID-19 poses in correctional facilities. Press Release, Wash. Dep’t of Corr.,

First Washington Corrections Line of Duty Death from COVID-19 (May 18, 2020),

https://www.doc.wa.gov/news/2020/05182020p.htm [https://perma.cc/EZ7T-WTV

4]; Press Release, Wash. Dep’t of Corr., First Incarcerated Individual in Washington

Dies of COVID-19 (June 18, 2020), https://doc.wa.gov/news/2020/06182020p.htm

[https://perma.cc/UCJ5-55BU]; Press Release, Wash. Dep’t of Corr., Second

Incarcerated Individual in Washington Dies of COVID-19 (June 22, 2020), https://

www.doc.wa.gov/news/2020/06242020p.htm [https://perma.cc/4BVC-9UK8].4

4 On June 24, 2020, petitioners brought emergency motions to submit additional evidence regarding the significant rise in COVID-19 cases at CRCC and the conditions of

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ANALYSIS

The question before us is not whether the risk of COVID-19 in Washington’s

prisons requires an immediate response to protect the lives of inmates and staff—

clearly it does. Instead, this case asks whether this court can issue a writ of

mandamus to direct that response by the governor and the secretary, or whether the

petitioners have shown that their continued incarceration is unlawful. We answer

no to both questions.

I. THE COURT LACKS AUTHORITY TO DIRECT OR OVERSEE THE GOVERNOR’S COVID-19 MITIGATION STRATEGY THROUGH MANDAMUS

A writ of mandamus is a rare and extraordinary remedy because it allows

courts to command another branch of government to take a specific action,

something the separation of powers typically forbids. Walker v. Munro, 124 Wn.2d

402, 407, 879 P.2d 920 (1994) (“When directing a writ to . . . a coordinate, equal

branch of government, the judiciary should be especially careful not to infringe on

the historical and constitutional rights of that branch.”). “One of the fundamental

principles of the American constitutional system is that the governmental powers are

divided among three departments—the legislative, the executive, and the judicial—

and that each is separate from the other.” Carrick v. Locke, 125 Wn.2d 129, 134,

confinement in that facility. They also requested appointment of an expert to conduct supplemental fact finding. The court considered these motions on an expedited basis and denied them by order on July 10, 2020.

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882 P.2d 173 (1994). Though “[o]ur constitution does not contain a formal

separation of powers clause[,] . . . ‘the very division of our government into different

branches has been presumed throughout our state’s history to give rise to a vital

separation of powers doctrine.’” Brown v. Owen, 165 Wn.2d 706, 718, 206 P.3d

310 (2009) (quoting Carrick, 125 Wn.2d at 135, and citing WASH. CONST. art. II, §

1, art. III, § 2, art. IV, § 1).

The framers of the federal constitution designed this three-part system to

prevent any one branch of government from gaining too much power. See THE

FEDERALIST NO. 47 (James Madison) (“The accumulation of all powers, legislative,

executive, and judiciary, in the same hands, whether of one, a few, or many, and

whether hereditary, self-appointed, or elective, may justly be pronounced the very

definition of tyranny.”); Clinton v. City of New York, 524 U.S. 417, 482, 118 S. Ct.

2091, 141 L. Ed. 2d 393 (1998) (Breyer , J., dissenting) (“[T]he principal function

of the separation of powers . . . is to . . . provid[e] a ‘safeguard against the

encroachment or aggrandizement of one branch at the expense of the other.’”

(quoting Buckley v. Valeo, 424 U.S. 1, 122, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976))).

This does not require that the branches of government be “hermetically sealed off

from one another. The different branches must remain partially intertwined if for no

other reason than to maintain an effective system of checks and balances.” Carrick,

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125 Wn.2d at 135.5 The separation of powers doctrine “serves mainly to ensure that

the fundamental functions of each branch remain inviolate.” Id.

The fundamental functions of each branch are familiar to most

Washingtonians. The legislative branch writes laws, WASH. CONST. art. II, § 1, the

executive branch faithfully executes those laws, WASH. CONST. art. III, § 5, and “[i]t

is emphatically the province and duty of the judicial department to say what the law

is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803); see also

WASH. CONST. art. IV, § 1 (vesting the judicial power of the state in this court,

superior courts, justices of the peace, and inferior courts created by the legislature).

The writ of mandamus reflects this limited judicial role of saying what the law

is. When the law requires a government official to take a particular action, we have

the power to issue a writ of mandamus to say so. See Freeman v. Gregoire, 171

Wn.2d 316, 323, 256 P.3d 264 (2011) (“Mandamus is an extraordinary remedy

appropriate only where a state official is under a mandatory ministerial duty to

5 “Legislative control over appropriations, the executive power to veto, and the judicial authority to declare legislative and executive acts unconstitutional, are all examples of direct control by one branch over another.” In re Salary of Juvenile Dir., 87 Wn. 2d 232, 242-43, 552 P.2d 163 (1976) (citing U.S. CONST. art. I, §§ 8, 9; WASH. CONST. art. VIII, § 4; Train v. New York, 420 U.S. 35, 95 S. Ct. 839, 43 L. Ed. 2d 1 (1975); U.S. CONST. art. I, § 7; WASH. CONST. art. III, § 12; United States v. Nixon, 418 U.S. 683, 703-05, 94 S. Ct. 3090, 41 L. Ed 2d 1039 (1974); Gruen v. State Tax Comm’n, 35 Wn.2d 1, 9, 211 P.2d 651 (1949), overruled prospectively by State ex rel. Wash. State Fin. Comm. v. Martin, 62 Wn.2d 645, 384 P.2d 833 (1963); Ex Parte Grossman, 267 U.S. 87, 119-20, 45 S. Ct. 332, 69 L. Ed. 527 (1925)).

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perform an act required by law as part of that official’s duties.”). In this way,

mandamus is equally a command of the law and a command of this court. As we

explained in one of our earliest mandamus cases:

[T]he writ which must necessarily issue under a petition of this kind . . . is no more effective than the statute. Each equally commands the officer to perform his duty. One is the announcement of the law by the law making power, the other is the announcement of the law by the court.

State ex rel. Hawes v. Brewer, 39 Wash. 65, 68-69, 80 P. 1001 (1905). A writ of

mandamus can only command what the law itself commands. If the law does not

require a government official to take a specific action, neither can a writ of

mandamus. See State ex rel. Taylor v. Lawler, 2 Wn.2d 488, 490, 98 P.2d 658 (1940)

(“The jurisdiction given to this court by the state constitution in Art. IV, § 4, to issue

writs of mandamus to state officers, does not authorize [us] to assume general control

or direction of official acts.”).

Because a writ of mandamus can require only what the law requires,

mandamus cannot control the discretion that the law entrusts to an official. See SEIU

Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 599, 229 P.3d 774 (2010)

(“‘[M]andamus may not be used to compel the performance of act or duties which

involve discretion on the part of a public official.’” (quoting Walker, 124 Wn.2d at

410)). Mandamus, therefore, is an appropriate remedy only “‘[w]here the law

prescribes and defines the duty to be performed with such precision and certainty as

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to leave nothing to the exercise of discretion or judgment.’” Id. (emphasis omitted)

(quoting State ex rel. Clark v. City of Seattle, 137 Wash. 455, 461, 242 P. 966

(1926)). The manner of carrying out duties “which are, by the constitution and laws,

submitted to the executive, can never be made in this court.” Marbury, 5 U.S. at

170; see Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d

635 (2016) (“[T]he power of the Federal Judiciary may not be permitted to intrude

upon the powers given to the other branches.”).

“We will not usurp the authority of the coordinate branches of government”

by dictating how they must exercise their discretion. Walker, 124 Wn.2d at 410.

Doing so would embody “the encroachment or aggrandizement of one branch at the

expense of the other,” which the separation of powers is designed to “safeguard

against.” Buckley, 424 U.S. at 122. “[T]he fundamental functions of each branch

[are] inviolate”—the judicial branch cannot “‘threaten[] the independence or

integrity or invade[]’” the powers of the executive through a writ of mandamus or

any other mechanism. Carrick, 125 Wn.2d at 135 (quoting Zylstra v. Piva, 85 Wn.2d

743, 750, 539 P.2d 823 (1975)); see Marbury, 5 U.S. at 170 (“The province of the

court is . . . not to enquire how the executive, or executive officers, perform duties

in which they have a discretion.”). The very legitimacy of the writ of mandamus in

our constitutional system depends on its narrow nature—our job is to say what the

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law is, not to dictate how another branch should do its job. See Brown, 165 Wn.2d

at 719 (“[T]he judiciary [must] not be drawn into tasks more appropriate to another

branch.”).

As this long history of precedent illustrates, there are thus “strict limits on the

circumstances under which we will issue the writ [of mandamus] to public officers.”

SEIU Healthcare 775 NW, 168 Wn.2d at 599. Besides showing a government

official has a clear duty to act, RCW 7.16.160, those seeking the writ must show

they have no “plain, speedy and adequate remedy in the ordinary course of law” and

that they are “beneficially interested,” RCW 7.16.170. Petitioners bear “the

‘demanding’ burden of proving all three elements justifying mandamus.” Eugster

v. City of Spokane, 118 Wn. App. 383, 403, 76 P.3d 741 (2003) (quoting Mallard v.

U.S. Dist. Court, 490 U.S. 296, 309, 109 S. Ct. 1814, 104 L. Ed. 2d 318 (1989)).

These petitioners have failed to meet their burden. They ask us to command

Governor Inslee and Secretary Sinclair to release about 13,000 inmates housed in

Washington’s correctional facilities, based on particular categories, but they do not

identify any clear duty the governor and secretary have failed to carry out.6 Instead,

6 The dissent suggests the petitioners are not seeking the blanket release of these inmates but, instead, are asking us to “direct DOC [(Department of Corrections)] to prioritize the release of vulnerable inmates while recognizing DOC’s appropriate authority to consider other factors like public safety.” Dissent at 4. But this characterization of petitioners’ request does nothing to advance their cause. “[T]he remedy of mandamus contemplates the necessity of indicating the precise thing to be done” and “‘will not lie to

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the petitioners argue that “a variety of constitutional and statutory sources” impose

on the governor and secretary a duty to “take all reasonable steps to protect people

in prison from COVID-19.” See Pet’rs’ Br. in Supp. of Pet. for a Writ of Mandamus

at 30. According to the petitioners, “release is the only actual ‘reasonable’” step

respondents could take to protect inmates form COVID-19. Id. at 53. But because

no law commands the governor and secretary to release inmates here, neither can a

writ of mandamus. Commanding the governor or the secretary to take specific

actions not required by law would exceed this court’s constitutional authority.

The executive branch has historically led Washington’s response to

emergencies. “The proclamation of an emergency and the Governor’s issuance of

executive orders” to address that emergency “are by statute committed to the sole

discretion of the Governor.” Cougar Bus. Owners Ass'n v. State, 97 Wn.2d 466,

476, 647 P.2d 481 (1982), overruled in part by Chong Yim v. City of Seattle, 194

Wn.2d 682, 451 P.3d 694 (2019). The law empowers the governor to “proclaim a

compel a general course of official conduct.’” Walker, 124 Wn.2d at 407-08 (citing Clark County Sheriff v. Dep’t of Soc. & Health Servs., 95 Wn.2d 445, 450, 626 P.2d 6 (1981), and quoting State ex rel. Pac. Am. Fisheries v. Darwin, 81 Wash. 1, 12, 142 P. 441 (1914)). And that is precisely what the dissent would grant: “a writ could direct relief that does not interfere with the discretion of the executive branch but mandates that discretion be exercised within constitutional limits.” Dissent at 6-7. “It is hard to conceive of a more general mandate than to order a state officer to adhere to the constitution. We have consistently held that we will not issue such a writ.” Walker, 124 Wn.2d at 408. We do so again today.

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state of emergency” in response to a disaster which threatens “life, health, property,

or the public peace.” RCW 43.06.010(12). An emergency proclamation unlocks

“the powers granted the governor during a state of emergency.” Id. Those

emergency powers are broad and include the authority to prohibit “[a]ny number of

persons . . . from assembling,” RCW 43.06.220(1)(b), “to waive or suspend” “any

statute, order, rule, or regulation [that] would in any way prevent, hinder, or delay

necessary action in coping with the emergency,” RCW 43.06.220(2)(g), to “order

the state militia . . . to assist local officials to restore order,” RCW 43.06.270, and

more. “These statutory powers evidence a clear intent by the Legislature to delegate

requisite police power to the Governor in times of emergency.” Cougar Bus.

Owners Ass’n, 97 Wn.2d at 474.

The governor’s response to an emergency “is clearly one of those

discretionary acts that are ‘in their nature political, or which are, by the constitution

and laws, submitted to the executive,’ and inappropriate for mandamus.” SEIU

Healthcare 775NW, 168 Wn.2d at 600 (quoting Marbury, 5 U.S. at 170); see RCW

43.06.010(12) (“The governor may . . . proclaim a state of emergency.” (emphasis

added)), .220(1)(b) (“The governor . . . may . . . issue an order prohibiting [a]ny

number of persons, as designated by the governor, from assembling.” (emphasis

added)), .220(2) (“The governor . . . may . . . issue an order or orders concerning

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waiver or suspension of statutory obligations.” (emphasis added)), .270 (“The

governor may in his or her discretion order the state militia . . . to assist local

officials to restore order.” (emphasis added)).7

Governor Inslee has exercised his discretion under these emergency powers

dozens of times since proclaiming a state of emergency. Most relevant here, the

governor has taken steps to accelerate the release of 950 nonviolent inmates who

were set to be released this summer. See Proclamation, supra; Wash. Gov. Jay

Inslee, Emergency Commutation in Response to COVID-19 (Apr. 15, 2020),

https://www.governor.wa.gov/sites/default/files/COVID-19%20-%20Commutation

%20Order%204.15.20%20%28tmp%29.pdf?utm_medium=email&utm_source=go

vdelivery [https://perma.cc/PY9P-3YK9]. By May 15, the Department reported 422

inmates had received commutation orders and another 528 had been placed in the

community through the rapid reentry program established under the governor’s

7 The dissent accuses us of “abdicating [our] responsibility” to “decide whether challenged acts or omissions violate the constitution” by “invok[ing] separation of powers” and “defer[ring] to the executive,” as the United States Supreme Court did in its repudiated decision upholding the incarceration of Japanese Americans during World War II. Dissent at 1-2 (citing Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), abrogated by Trump v. Hawaii, ___ U.S. ___, 138 S. Ct. 2392, 201 L. Ed. 2d 775 (2018)). This inaccurate and inflammatory accusation sheds more heat than light. The Korematsu decision endorsed the mass incarceration of law-abiding Americans based on their Japanese heritage, on grounds that had little to do with the separation of powers and everything to do with racism. It is unfair to equate that case with our recognition here of the governor’s and secretary’s discretion in implementing emergency measures to mitigate the risk of COVID-19 to those lawfully incarcerated in Washington’s prisons.

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proclamations. Memorandum from Stephen Sinclair, Sec’y of the Wash. Dep’t of

Corr., to All Incarcerated Individuals (May 15, 2020), https://www.doc.wa.

gov/news/2020/docs/2020-0515-incarcerated-individual-memo-prison-population-

reduction-efforts.pdf [https://perma.cc/2FYQ-NQHS].

The petitioners argue that this action does not go far enough and that the

governor must release thousands more inmates to protect them from COVID-19.

But like the governor’s emergency powers, the governor’s power to release inmates

by commuting sentences or pardoning offenders is exclusive and discretionary. See

WASH. CONST. art. III, § 9 (“The pardoning power shall be vested in the governor

under such regulations and restrictions as may be prescribed by law.”); RCW

10.01.120 (“[T]he governor . . . may . . . commute a sentence or grant a pardon, upon

such conditions, and with such restrictions, and under such limitations as he or she

may think proper . . . . The governor may also, on good cause shown, grant respites

or reprieves from time to time as he or she may think proper.” (emphasis added)).

Because the constitution and laws of our state entrust the governor with the

discretion to pardon those offenders and commute those sentences that he thinks

proper, this court has no power to dictate how the governor may exercise that

discretion—even in an emergency. See Brown, 165 Wn.2d. at 725 (“Directing the

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performance of a discretionary duty would ‘usurp the authority of the coordinate

branches of government.’” (quoting Walker, 124 Wn.2d at 410)).

The administration of correctional institutions is also an undeniably executive

function. See Robinson v. Peterson, 87 Wn.2d 665, 669, 555 P.2d 1348 (1976)

(“Questions concerning the rights of inmates of prisons and the duties of their

custodians have not been frequently before this court. This should not be surprising,

since the administration of the state institutions and county jails is an executive

function and not a judicial one.”). To avoid offending the separation of powers, we

have long fought to ensure Washington’s courts are not “drawn into tasks more

appropriate to another branch,” including prison administration. Brown, 165 Wn.2d

at 719; see also In re Pers. Restraint of Dyer, 143 Wn.2d 384, 393, 20 P.3d 907

(2001) (“It is not in the best interest of the courts to involve themselves in the ‘day-

to-day management of prisons.’” (quoting Sandin v. Conner, 515 U.S. 472, 482, 115

S. Ct. 2293, 132 L. Ed. 2d 418 (1995))).

The petitioners ask us to command the executive branch to exercise its

emergency powers, its commutation and pardon powers, and its powers to

administer Washington’s correctional facilities to immediately release thousands of

inmates. But “[w]e will not”—and, consistent with the separation of powers,

cannot—“usurp the authority of the coordinate branches of government” by dictating

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how the executive branch must exercise these discretionary powers. Walker, 124

Wn.2d at 410. The constitution empowers us “to say what the law is,” but it does

not empower us to dictate “how the executive, or executive officers, perform duties

in which they have a discretion.” Marbury, 5 U.S. at 177, 170.

Interfering with the governor’s choices in responding to this emergency would

contravene the historical roles of the executive and judicial branches. Absent a clear

mandate for more specific action on the governor’s part, we have no authority to

oversee the governor’s many discretionary actions to address the COVID-19

outbreak. While we do not minimize the serious risks COVID-19 poses to

Washington’s incarcerated population, we will not use this emergency as an

occasion to wield powers that exceed our constitutional authority. For these reasons,

we deny and dismiss the petition for a writ of mandamus.

II. THE PETITIONERS HAVE NOT SHOWN “DELIBERATE INDIFFERENCE” TO SUPPORT RELIEF UNDER A PERSONAL RESTRAINT PETITION, SO THEIR MOTION TO AMEND IS FUTILE

Following the court’s April 10, 2020 order on the petitioners’ emergency

motion, the petitioners brought a motion to amend their petition to add a personal

restraint petition claim. Even setting aside the procedural hurdles to consideration

of such a claim,8 allowing the amendment would be futile because the petitioners

8 For example, there is no authority for the proposition that a personal restraint petition may be filed by more than one petitioner. We do not reach that question here.

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cannot show that they suffer from unlawful restraint. The personal restraint petition

is the procedure by which original actions are brought in the appellate courts of

Washington to obtain collateral or postconviction relief from criminal judgments

and sentences, and other forms of government restraint, such as civil commitment

and prison discipline. Governed by the procedures set forth in Title 16 RAP, a

personal restraint petition is the vehicle for seeking relief that was formerly available

by petition for writ of habeas corpus or other postconviction motion. RAP 16.3.

This court and the Court of Appeals have concurrent original jurisdiction over such

petitions. RAP 16.3(c).

As the name of the action implies, a personal restraint petition is designed to

obtain relief from an “unlawful restraint.” The petitioners here are clearly under

restraint, as they are confined and serving terms of imprisonment. In re Pers.

Restraint of Stuhr, 186 Wn.2d 49, 52, 375 P.3d 1031 (2016). But to succeed, the

petitioners must show that their confinement is “unlawful.” Only unlawful prison

conditions constitute a basis for granting a personal restraint petition. RAP

16.4(c)(6).9 The petitioners mainly argue that the substantial risk caused by COVID-

19 makes their imprisonment cruel or unusual.

9 Lawsuits challenging prison conditions are generally litigated in civil rights or declaratory judgment actions. We are aware of a pending action for declaratory and injunctive relief in Nagel v. Department of Corrections, Pierce County Superior Court cause number 20-2-05585-4, making similar prison conditions arguments. A relevant

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The petitioners rely on article I, section 14 of the Washington Constitution

and the Eighth Amendment to the United States Constitution, but do not argue for

an independent state constitutional analysis on their prison conditions claims. As a

result, we apply the Eighth Amendment standards requiring a showing of a

substantial risk of serious harm and deliberate indifference to that risk. Farmer v.

Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). As the facts

described above show, the petitioners face a substantial risk of serious harm.

Petitioners’ counsel persuasively noted at oral argument that, in prison and jail

facilities, inmates live in close confinement with one another with no real choice as

to social distancing or other measures to control spread of the virus. The risk of a

COVID-19 outbreak is undeniably high in these facilities and under these conditions.

But it is not sufficient for the petitioners to show a substantial risk of serious

harm. Under well-established precedent, obtaining judicial relief also requires

showing that the respondents have acted with “deliberate indifference” to that risk.

Farmer, 511 U.S. at 832. Under this constitutional standard, the record must

evidence subjective recklessness or deliberate indifference; that is, the official must

know of and disregard the risk. Id. at 837. Repeated negligent acts demonstrating

inquiry in considering a personal restraint petition is whether the petitioner has other adequate recourse through such an action, but because we do not grant the motion to amend, we need not decide whether another remedy is available to these petitioners. See RAP 16.4(d) (limiting relief to where other remedies are inadequate).

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systemic deficiencies in the method of providing protections may amount to

deliberate indifference. See Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir.

1990).

Here, the record does not show the respondents have acted with deliberate

indifference. And there is no indication that extending this court’s initial

preservation order would help identify any such indifference. The governor has

issued proactive orders to reduce prison populations and to protect offenders

incarcerated in prison. The Department has implemented a multifaceted strategy

designed to protect offenders housed at various facilities, increasing those

protections as more information becomes available about the virus and its risks. Part

of that strategy includes a release of some nonviolent offenders. The petitioners

imply that any plan that does not lead to their own personal release is insufficient,

but this is simply a difference of opinion in how to best fight the threat of COVID-

19 in prisons.

While reasonable minds may disagree as to the appropriate steps that should

be taken to protect the prison population while preserving public safety, no evidence

here shows that the respondents have acted with deliberate indifference. The result

might be different on different facts, and we do not suggest the inadequacy of safety

measures can never amount to deliberate indifference. On this record, however, the

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petitioners cannot show unlawful restraint to support a personal restraint petition and

thus granting their motion to amend would be futile. See Ino Ino, Inc. v. City of

Bellevue, 132 Wn.2d 103, 142, 937 P.2d 154 (1997) (court may deny leave to amend

complaint where a “[new] claim would have been futile”). As a result, we deny the

motion to amend and dismiss the petition.10

CONCLUSION

Consistent with our limited authority to compel only mandatory,

nondiscretionary action by another branch of government, we deny the petitioners’

claims for extraordinary judicial relief. We are not indifferent to the serious dangers

faced by petitioners and other inmates at heightened risk of contracting COVID-19

in Washington’s correctional facilities, but how the governor and secretary address

these dangers and also protect the public necessarily involves the exercise of

discretionary authority that we cannot direct. Even if we could do so, nothing before

us suggests how we would succeed where those charged with running Washington’s

correctional system have failed. Today’s decision resolves these claims on the facts

before us and does not excuse the governor and secretary from their continuing

obligations toward these petitioners and other inmates. At the same time, we will

10 The petitioners originally also argued claims arising under article I, section 12 of the Washington Constitution and the Washington Law Against Discrimination, RCW 49.60.030. But all subsequent argument has focused on federal Eighth Amendment standards. The petitioners have shown no constitutional or statutory basis for relief.

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not excuse ourselves from our obligation to respect the discretion vested in another

branch of government and uphold the constitutional separation of powers.

____________________________

WE CONCUR:

___________________________ ____________________________

____________________________ ____________________________

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No. 98317-8

GONZÁLEZ, J. (dissenting) — When this case was filed, the COVID-19 virus

(coronavirus disease) was spreading throughout our state, nation, and world,

creating a public health emergency unprecedented in living memory. The resulting

fear and anxiety, coupled with the need to take distancing measures, caused

massive disruption in our daily lives and institutions. The courts have a role to

play in protecting individual rights in times of emergency. It is true that we must

not usurp the essential functions of another branch of government. But we too

have an essential function: to say what the law is, to say whether the law has been

violated, and to order relief when relief is warranted.

If we are to fulfill our essential judicial function, we must decide whether

challenged acts or omissions violate the constitution, even when making that

decision is difficult. And we must learn from our history—a history which shows

that in times of distress, courts all too often defer to the executive branch and

sacrifice precious liberties, especially for our most vulnerable. In Korematsu v.

1 Colvin et al. v. Inslee et al., No. 98317-8

United States, for example, amidst fear in a time of war, the judicial branch

sanctioned a repulsive, unjustified racial classification that led to enormous

suffering authorized by an executive order. 323 U.S. 214, 215, 65 S. Ct. 193, 89 L.

Ed. 194 (1944), abrogated by Trump v. Hawaii, __ U.S. __, 138 S. Ct. 2392, 201

L. Ed. 2d 775 (2018); see Korematsu v. United States, 584 F. Supp. 1406 (N.D.

Cal. 1984) (granting a postconviction writ of coram nobis 40 years later vacating

Mr. Korematsu’s conviction). This tragic history stands as a caution that in times

of crisis, the judiciary must not invoke separation of powers to avoid subjecting

government actions to close scrutiny and accountability. Because the majority has

abdicated this responsibility with its near-summary dismissal of the petitioners’

claims, I dissent.

The petitioners are five individuals incarcerated in Department of

Corrections (DOC) facilities where the State is responsible for their safety during

this public health emergency. Because prisons are cramped and crowded

environments, petitioners are at an increased risk of contracting COVID-19, and

serious outbreaks of this deadly disease have already occurred in multiple prisons,

putting inmates, staff, and the community at risk. As of July 16, 2020, there have

been at least 651 deaths from coronavirus reported among prisoners across our

country, including several in Washington State. A State-by-State Look at

Coronavirus in Prisons, THE MARSHALL PROJECT,

2 Colvin et al. v. Inslee et al., No. 98317-8

https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-

coronavirus-in-prisons (last visited July 16, 2020); NWPB News, 2nd Inmate Dies,

National Guard Deployed To Help with COVID Testing at Eastern Washington

Prison, SPOKANE PUBLIC RADIO (June 26, 2020),

https://www.spokanepublicradio.org/post/2nd-inmate-dies-national-guard-

deployed-help-covid-testing-eastern-washington-prison. Our federal constitution,

by prohibiting “cruel and unusual punishment,” requires state officials to take

reasonable measures to protect the people in their custody from contracting the

virus. U.S. CONST. amend. VIII; see Farmer v. Brennan, 511 U.S. 825, 832, 114 S.

Ct. 1970, 128 L. Ed. 2d 811 (1994); Helling v. McKinney, 509 U.S. 25, 35, 113 S.

Ct. 2475, 125 L. Ed. 2d 22 (1993); Martinez-Brooks v. Easter, No. 3:20-CV-00569

(MPS), 2020 WL 2405350, at *20-26 (D. Conn. May 12, 2020).

This responsibility is well established.

“[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being. . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment.”

Helling, 509 U.S. at 32 (alterations in original) (quoting DeShaney v. Winnebago

County Dep’t of Soc. Servs., 489 U.S. 189, 199-200, 109 S. Ct. 998, 103 L. Ed. 2d

3 Colvin et al. v. Inslee et al., No. 98317-8

249 (1989)); see Brown v. Plata, 563 U.S. 493, 510, 131 S. Ct. 1910, 179 L. Ed. 2d

969 (2011). Our state constitution also prohibits “cruel punishment,” and we have

repeatedly found our cruel punishment clause is more protective than the Eighth

Amendment. WASH. CONST. art. I, § 14; see State v. Bassett, 192 Wn.2d 67, 78-82,

428 P.3d 343 (2018) (collecting cases).

The petitioners filed this mandamus action arguing the response of state

officials to the COVID-19 emergency in prisons was constitutionally inadequate.

They argued social distancing is not possible in prisons at the current population

levels and asked for a writ of mandamus directing the governor and the DOC

secretary to use their powers to significantly reduce the prison population. At oral

argument, the petitioners made clear they were not seeking the blanket release of

any particular group. They are not seeking a blanket release of all individuals over

age 50, of all individuals with serious underlying medical conditions, or of all

individuals with early release dates within the next 18 months. Rather, they ask

this court to direct DOC to prioritize the release of vulnerable inmates while

recognizing DOC’s appropriate authority to consider other factors like public

safety in determining how to sufficiently reduce the prison population to allow safe

distancing of inmates and staff. Whether this relief is available in mandamus is a

difficult question that deserved due scrutiny.

4 Colvin et al. v. Inslee et al., No. 98317-8

But by order issued the day of oral argument, a majority of this court

summarily dismissed the petition and denied the petitioners’ request to seek similar

relief via a personal restraint petition. In the opinion published today, the majority

explains its view that a writ of mandamus was not available because no statute

specifically requires a reduction of the prison population during the pandemic, and

the use of emergency powers to protect the health of inmates requires the governor

and DOC secretary to exercise discretion. According to the majority, our hands are

tied by “long recognized separation of powers principles.” Majority at 2.

Separation of powers does not mandate the majority’s conclusion. Our

constitutional system divides power among three different branches of government

to prevent tyranny and protect liberty. Hale v. Wellpinit Sch. Dist. No. 49, 165

Wn.2d 494, 504, 198 P.3d 1021 (2009). Each branch has its own appropriate

sphere of activity and inviolate fundamental functions. Id. (citing Philip A.

Talmadge, Understanding the Limits of Power: Judicial Restraint in General

Jurisdiction Court Systems, 22 SEATTLE U. L. REV. 695 (1999); Carrick v. Locke,

125 Wn.2d 129, 135, 882 P.2d 173 (1994)). But separation of powers does not call

for the branches of government to be entirely “‘sealed off from one another.’” Id.

(quoting Carrick, 125 Wn.2d at 135). Instead it recognizes that they must remain

partially intertwined to effectively check and balance each other. Id. While it is an

executive branch function to decide whether, when, and how to exercise

5 Colvin et al. v. Inslee et al., No. 98317-8

emergency powers amidst a public health emergency, an emergency “is not a blank

check for the [executive] when it comes to the rights of the Nation’s citizens.”

Hamdi v. Rumsfeld, 542 U.S. 507, 536, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004).

During an emergency, our constitutional system “envisions a role for all three

branches when individual liberties are at stake.” Id. It remains the judicial

function to declare unconstitutional that which transgresses the rights of

individuals in our state.

Consistent with these principles, Washington law authorizes a writ of

mandamus to compel a public official to perform a mandatory nondiscretionary

duty or to correct a clear and manifest abuse of discretion. Brown v. Owen, 165

Wn.2d 706, 726-27, 206 P.3d 310 (2009) (citing Walker v. Munro, 124 Wn.2d 402,

411, 879 P.2d 920 (1994)); State ex rel. Reilly v. Civil Serv. Comm’n, 8 Wn.2d

498, 501-04, 112 P.2d 987 (1941); State ex rel. Beffa v. Superior Court, 3 Wn.2d

184, 187, 100 P.2d 6 (1940); State v. Superior Court, 59 Wash. 670, 673, 110 P.

622 (1910). If the petitioners show unconstitutional acts or omissions by public

officials that amount to a clear and manifest abuse of discretion, we may issue a

writ of mandamus. See Brown, 165 Wn.2d at 726-27 (citing Walker, 124 Wn.2d

402); State ex rel. Reilly, 8 Wn.2d at 501-04; State ex rel. Beffa, 3 Wn.2d at 187.

Under those circumstances, a writ could direct relief that does not interfere with

the discretion of the executive branch but mandates that discretion be exercised

6 Colvin et al. v. Inslee et al., No. 98317-8

within constitutional limits. Washington law also authorizes us to grant relief for

unconstitutional conditions of confinement via a personal restraint petition. RAP

16.4(c)(6).1

I cannot confidently say on the present record whether the petitioners are

entitled to the relief they seek. The respondents have filed reports detailing their

safety plan and steps taken to protect inmates from contracting COVID-19.

According to these submissions, DOC has adopted protocols in an effort to follow

United States Center for Disease Control and Prevention guidelines, has already

implemented many of these protocols, and is in the process of implementing

others. The governor and the secretary have also exercised their powers to

facilitate the early release of some nonviolent offenders, bringing the prison

population from approximately 18,000 to just over 16,000. These submissions

show commitment to staff, inmates, and the community. But questions of fact

remain that preclude a decision on the merits. For that reason, I would not order

any relief on this record. 2

1 At this point I see no reason why CR 23 governing class certification would not apply where a sufficiently large number of prisoners claim similar harm. See Rodriguez v. Hayes, 591 F.3d 1105, 1117 (9th Cir. 2010) (noting the Ninth Circuit has recognized that class actions may be brought pursuant to habeas corpus (citing Mead v. Parker, 464 F.2d 1108, 1112-13 (9th Cir. 1972))). 2 After the court issued its order denying the petition for a writ of mandamus, several political organizations began spreading false information that the dissenting justices would have ordered state officials to immediately release mass numbers of serious violent offenders. That false information was spread through a social media campaign using images of the justices in a style reminiscent of “wanted” posters. Not surprisingly, the campaign incited harassment and 7 Colvin et al. v. Inslee et al., No. 98317-8

But I am confident that this court should not have summarily dismissed the

petitioners’ suit. This is hardly the first time a case has been filed before all the

facts are established. Our court rules contemplate a situation like this where we

need to resolve questions of fact before deciding the merits of a petition for a writ

of mandamus or a personal restraint petition. See RAP 16.2(d), 16.11(a), 16.12.

Instead of using these tools and others, the majority—in the name of separation of

powers—tosses out the petitioners’ claims without meaningfully scrutinizing

whether the government is violating their basic liberties. Since the court’s order,

cases of COVID-19 in DOC facilities have continued to rise. Recently, positive

cases at the Coyote Ridge Corrections Center (CRCC)—which is more than an

hour away from community hospitals—doubled in a week, with 101 inmates and

staff infected and 1,815 inmates exposed. See COVID-19 INFORMATION, Wash.

Dep’t of Corr., https://www.doc.wa.gov/news/covid-19.htm#testing (last visited

June 11, 2020); Press Release, Wash. Dep’t of Corr., Coyote Ridge Corrections

Center Medium Security Complex on restricted movement to contain COVID-19

(June 11, 2020), https://www.doc.wa.gov/news/2020/06112020p.htm

[https://perma.cc/64YR-3DCF]. 3 We should have retained the matter, ordered the

threats toward the dissenting justices, with especially personal and hateful threats directed to the justices of color. Because of these threats, I feel it is important to take the extraordinary step of making clear that the information circulated was false, and no justice would have ordered such relief that day. 3 Because the circumstances are rapidly developing, these numbers will undoubtedly be out of date by the time our opinion is filed. 8 Colvin et al. v. Inslee et al., No. 98317-8

State to provide an updated report, appointed a fact finder, allowed the petitioners

to amend their action, and given the petitioners’ claims the scrutiny they deserve. I

dissent. 4

4 On June 24, 2020, the petitioners filed (1) a motion to submit new relevant additional evidence in support of their petition for a writ of mandamus, (2) a motion for the appointment of a public health expert, and (3) a motion to expedite consideration of the first two motions. They ask us to consider evidence about the current outbreak at the CRCC, including declarations from three people who are confined there. According to these declarations, because of the outbreak, individuals are confined to their cells for 23.5 hours per day, and those confined in cells that lack toilets and water have had to urinate in bottles, or even soil themselves, while waiting hours for an escort to the bathroom. See Decl. of Abdullahi Noor at ¶¶ 7-8; Decl. of Jason Streiff at ¶¶ 7- 8. The petitioners ask us to consider this new evidence about the CRCC outbreak and issue an order to show cause why an expert should not be appointed to investigate and evaluate the steps DOC is taking to protect the people in its custody. I agree with the majority that expedited consideration of these requests is appropriate. But I would go further. Evidence that there has been a major outbreak at the CRCC is highly relevant to the petitioners’ claim that DOC’s policies and procedures, which it purports it is using in all of its facilities to mitigate the risk of harm from the virus, do not sufficiently mitigate that risk. We should take this evidence into consideration, see RAP 9.11(a), and enter an order to show cause why an expert should not be appointed, see ER 706. 9 Colvin et al. v. Inslee et al., No. 98317-8

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