OLIM v. WAKINEKONA

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ORAL ARGUMENT OF MICHAEL A. LILLY, ESQ.

Chief Justice Burger: We will hear arguments next in Olim against Wakinekona.

Mr. Lilly, I think you may proceed whenever you are ready.

Mr. Lilly: Mr. Chief Justice, and may it please the Court, the question presented by this case is whether state-created pretransfer procedures prior to an interstate transfer of an inmate implicate a liberty interest protected by the Fourteenth Amendment.

We believe that the Court should not so broaden the concepts of the due process clause to so extend it to mere procedures prior to interstate transfer where there is no underlying substantive liberty interest at stake.

Now, Delbert Kaahanui Wakinekona is a maximum control, maximum security inmate of the Hawaii prison system.

He is serving multiple terms for crimes including life without parole for murder in 1970.

He was in 1976 an inmate of the maximum control unit of the Hawaii State Prison.

The maximum control unit was a prison within the Hawaii State Prison System, a small prison with its own programs, with its own walls within the institution to house maximum security type inmates.

On August 2, 1976, there was a series of hearings conducted by what is called the Program Committee, which is not unlike the type of committees you see in almost every prison system throughout the land, to ascertain why the programs within the maximum control unit had failed.

Mr. Wakinekona, along with every other inmate of the maximum control unit, were interviewed.

Subsequently, the same committee provided notice to Mr. Wakinekona that within five days they would hold a hearing to determine whether his classification within the system should be altered, and whether or not he should be transferred to another part of the prison system, another prison within Hawaii, or transferred interstate.

A hearing was held before this committee.

He was represented by an attorney.

He was provided opportunity to respond to all of the provisions set forth in the notice.

He was advised why they were considering certain actions about him.

And ultimately, after the hearing was concluded, he received a notice of recommendations on his security classification that it should remain as maximum, that he continued to be a security risk within the Hawaii prison system, and that because of major changes that were going to be undertaken by the system, and that is, to terminate the maximum control unit, pending construction of the State of Hawaii's new master plan, master correctional plan, that because there would be no programs available in Hawaii for maximum control inmates, there would be no institution set up for maximum control type inmates, that they recommended that Mr. Wakinekona be transferred to a mainland facility.

That recommendation was followed by the administrator, the final decision-maker under Rule 4 of our rules, Mr. Antone Olim, who made the decision to transfer Mr. Wakinekona to Folsome Prison in California--

Unidentified Justice: Mr. Lilly, in reading the Ninth Circuit's opinion, I had some difficulty, because I couldn't find any place where the rules were set out.

Can you tell me somewhere in the briefs or appendix where these rules they were talking about are set out?

Mr. Lilly: --The rules are attached in the Joint Appendix.

They are attached to the complaint as an exhibit.

Unidentified Justice: Thank you.

Mr. Lilly: And if you will read in the... Those rules provide two basic processes that are addressed.

There is an adjustment process in Hawaii for your traditional disciplinary type actions, where the committee makes actual decisions to punish inmates based upon substantial evidence of rule violations.

That is to be contrasted with the Program Committee process, which is under the classification process, where they review every inmate within the system on an ongoing basis to determine where that person best fits within the prison system, to determine what kind of classification he should have, and where he should be housed within the system.

It is a continuing... It is described, the classification process is described in its purpose as a dynamic process that provides a continuing evaluation of every inmate based upon a multiplicity of factors, one committed basically to the discretion of the officials.

Unidentified Justice: What happens when he goes to Folsome?

Mr. Lilly: When Mr. Wakinekona goes to Folsome, then he comes under the programs and the operation of the Folsome prison system.

Unidentified Justice: Which wouldn't be as present inmates.

Mr. Lilly: He would be the same as a Folsome inmate if he went to Folsome, as he did.

Unidentified Justice: And another thing is, how does his family visit him in Folsome?

Mr. Lilly: There is no question that when you have an interstate transfer, that it makes it more onerous.

Unidentified Justice: This is a little more than a normal interstate transfer.

Like for example if you transfer somebody from Newark to New York City, that is crossing a river, and this is crossing a body of water, but it is not a river.

Mr. Lilly: I agree with you that it presents different situations, except it is not unlike, for example, the Court's consideration in the Howe versus Smith case last session, in which an inmate was transferred from Vermont to the federal prison in Georgia.

It is also not unlike--

Unidentified Justice: The Pacific Ocean isn't between Vermont and Georgia.

Mr. Lilly: --It's... if I may say... I agree with that.

We have a much more difficult opportunity for inmates to... for visitation interstate, but it is also not unlike this Court's reversal, vacation in Howe versus Maderis last session, in light of Howe, in which three of our inmates had been transferred to a federal prison system in Marion, Illinois.

It is not unusual that inmates will be transferred interstate.

It is not unusual that an inmate from Alaska would be transferred anywhere within the United States.

It is not unusual for Hawaii inmates to be transferred interstate.

It is within the contemplation of the sentence of--

Unidentified Justice: Well, it always involves a balancing of all the interests, does it not?

Mr. Lilly: --It is a very delicate balancing.

We don't do it so often, because it is very expensive, but when we do it, we do it because there are necessary considerations, and in this case, with Mr. Wakinekona, there would be absolutely no place for him within the Hawaii prison system with the termination of the maximum security unit.

He would basically be placed in a cell, and would have no opportunity for any kind of programming.

Once his status was remained at maximum, there was simply no place for him.

Unidentified Justice: Mr. Lilly, what specific rules were not followed by the state in connection with the process of this transfer?

Was it Rule 4-2, on the composition of the program committee?

Mr. Lilly: Apparently, what is alleged, that it was... the composition is the... claiming that Mr. Wakinekona did not have an impartial tribunal.

Unidentified Justice: Is that the only alleged failure to follow the rule?

Mr. Lilly: I think that's probably the basic--

Unidentified Justice: As you understand it?

Mr. Lilly: --As I understand it.

If you read the complaint, he doesn't even contest the basis for the decision.

There is no allegation anywhere in this case about--

Unidentified Justice: But as you understand it, the sole defect here, if there is one, would be in the composition of the program committee that--

Mr. Lilly: --Yes, Justice O'Connor.

Unidentified Justice: --provided the hearing.

And do you agree that under Hawaii's adopted rules, that the transfer here would fit the definition of a grievous loss?

Mr. Lilly: For purposes of this argument, we will.

Unidentified Justice: May I ask just a question about your prisons?

Where was he incarcerated before his transfer to California?

Mr. Lilly: He was transferred... He was housed in the Hawaii State Prison.

Unidentified Justice: Which is where, just out of curiosity?

Mr. Lilly: Just outside of Honolulu.

Unidentified Justice: It is on Oahu?

Mr. Lilly: It is on Oahu.

It is basically in an industrial area, and within the prison system there is the maximum control unit, which no longer exists today.

Unidentified Justice: Do they have similar institutions on other islands in the state?

Mr. Lilly: Every island has an institution, basically medium security facilities for people who live in that locality.

Unidentified Justice: I see.

You haven't had this kind of problem with intra-island transfers?

Nobody has been contesting your right to move an inmate from one island to another within the state?

Mr. Lilly: We have had a number of contests.

We have had contests about intrastate transfers.

Unidentified Justice: I see.

Mr. Lilly: And a number of state actions contesting interstate transfers.

There were a number of transfers in this period of time when we were reducing the... we were eliminating the maximum control unit at that time, not unlike Vermont in the Howe case, where they eliminated their maximum control facility.

The... By the way, as I understand it, Mr. Wakinekona at this time is in Vaccaville Medical Facility, and is still in California.

Mr. Wakinekona filed suit in federal court in Honolulu for money damages and a declaration that his constitutional rights were violated.

He does not allege in the complaint that the decision itself to transfer him to the mainland was in any way wrong.

He apparently contests actually the composition and the process set up in our procedures prior to interstate transfer before the Program Committee.

He alleges in his complaint and in a letter that he was transferred from one hole to another, only a larger one, but he does not allege in any respect that the conditions of his confinement were materially different between the Hawaii system and the mainland system.

The Ninth Circuit reversed the District Court's decision that on the face of his complaint he did not allege a liberty interest protected by the Fourteenth Amendment.

The Ninth Circuit held in a two to one opinion that the procedures, the detailed procedures here alone created a constitutional right to due process, that it implicated a liberty interest.

It did so in the face of an opinion rendered by the Hawaii Supreme Court which interpreted this particular rule, Lono versus Ariyoshi, which is attached to the petition for certiorari.

The Hawaii Supreme Court specifically held that Rule 4 contained no standards, contained no limitations on discretion, was a mere procedural rule, and if you read it carefully, you have to come to the conclusion that the Supreme Court is saying that Mr. Wakinekona had absolutely no expectation, reasonable or otherwise, except for a unilateral one, in Hawaii laws, in Hawaii regulations, to remain in the Hawaii prison system, that the prison system has the absolute discretion, consistent only with constitutional standards, to transfer inmates to the mainland.

That is, that the administrator can transfer them for any constitutionally permissible reason.

Now, the liberty interest--

Chief Justice Burger: We will resume there at 1:00 o'clock, Mr. Lilly.

Mr. Lilly, you may proceed.

ORAL ARGUMENT OF MICHAEL A. LILLY, ESQ. -- CONTINUED

Mr. Lilly: Thank you, Your Honor.

The due process claim raised by the Respondent in this case is grounded in whether he has a liberty interest to remain in the Hawaii prison system as contemplated by the due process clause of the United States Constitution, and implicit in the notion of due process is the freedom of restraint in any significant way, such as, for example, in this Court's on parole and early release, for example, in Wolff.

And from Roth on, this Court has said that we look to the nature of the interest, and not the weight, and that is where grievousness seems to come into play, as to whether that constitutes a basis for a liberty interest.

Now, in last term, and I think I misspoke earlier, the Howe case, Howe versus Smith, had a companion case.

It was Hawaii versus Maderis, in which three Hawaii inmates were transferred to the federal system in Marion, Illinois, and it was... the same issue was raised in that case as was raised in Howe, and in light of Howe, Hawaii versus Maderis was remanded.

There was no suggestion in those cases that an interstate transfer was grievous in a constitutional sense.

Indeed, for purposes of arguing the grievous aspect of due process, if it is... has any vitality at all after the Iago decision, and after the Meachum decision, is that Wakinekona, Mr. Wakinekona would stand in no different position in this case than if he were a federal prisoner in Hawaii, and there being no federal prison in Hawaii, he would have been transferred interstate.

And Mr. Wakinekona is not irrevocably sent to California.

He still remains a Hawaii prisoner, and under the Western Interstate Corrections Compact, attached to our brief in this matter, he remains a Hawaii prisoner, and he remains under the Hawaii statutes and rules and regulations.

Unidentified Justice: Mr. Lilly, what is the doctrine you say you think has little vitality after Meachum?

Mr. Lilly: The notion that grievous loss in any way on its face implicates a liberty interest.

Unidentified Justice: I think the decisions from this Court, maybe some have avoided use of the term and some haven't, perhaps just because of its vagueness, but in a sense Hawaii has brought its problems on itself here.

I mean, these regulations one might think were perhaps drawn by a social worker, but they do use the term "grievous loss".

Mr. Lilly: They were... the rules are... I think it is probably a poor choice of words.

It was in some respects ambiguous, but at the time when these rules and regulations were adopted, there was no definitive ruling in a sense by this Court as to what was or was not a grievous loss.

Indeed, it seemed to be going in the direction of grievousness as having some kind of a liberty triggering process, and I think Hawaii had that in mind when that... those words were utilized.

But even in Iago, it was decided that there was no question that he suffered a grievous loss, but that was not of a constitutional dimension.

There is no question that Mr. Wakinekona complains about being transferred, but he doesn't complain about the decision to transfer, and that doesn't necessarily implicate a liberty interest.

Unidentified Justice: Well, you say he complains about being transferred, but he doesn't complain about the decision to transfer.

Mr. Lilly: About the actual decision.

He does not complain that the decision to transfer him was incorrect in any material respect.

He complains about the processes, the procedures and the hearing before our Program Committee, saying that that was incorrect, and therefore his due process rights were violated.

Unidentified Justice: How would you know what the result would be before a different kind of a tribunal?

Mr. Lilly: If... in this particular case, Hawaii has adopted rules and regulations to provide for procedures, which gives him a modicum of process, but has not said that Mr. Wakinekona has in any respect a right to remain in Hawaii.

He has no liberty interest or entitlement to remain within the system, and therefore due process, we contend, does not attach.

Unidentified Justice: Is the right to have family visits within liberty, do you consider?

Mr. Lilly: I don't believe... I don't believe that that's before the Court, but I don't think that the right to have family per se visit is necessarily a constitutional right.

Unidentified Justice: I said a liberty.

Mr. Lilly: I don't think that the right to have family visit is in itself a liberty, a freedom.

Unidentified Justice: I didn't think so.

Mr. Lilly: And our rules and regulations due use the term "grievousness", but those are the state's rules and regulations.

They are not necessarily intended to be of a constitutional dimension.

It is merely definitional for purposes of defining in what situations it intends to have a procedure prior to taking certain actions with respect to inmates, whether they be deemed adverse to the inmate or even beneficial, because transfers to the mainland in Hawaii can be made for a variety of reasons that don't necessarily mean that the inmate is a bad person, or violated some rule.

Indeed, in this case, if you read the decision, the recommendation of the hearing body, they did it basically for his benefit, because there would be no programs available to this inmate in Hawaii.

They transferred him to the California system so that he would have available to him programming that would not be available to him in Hawaii.

Unidentified Justice: I thought he was transferred because he was such an unruly prisoner.

Mr. Lilly: That is... There are two parts of the decision, the recommendation--

Unidentified Justice: Well, give us both.

Don't just give us one.

Mr. Lilly: --What happened was that they were evaluating in one respect his classification.

They found that because of his security risk, because he was such an assaultive inmate... he had threatened guards, he was an escape risk, and since his conviction for murder he had committed other crimes... that his classification within the system remained at maximum.

That being the case, they had no choice but to recommend that he be transferred to the mainland, because the programs that were available in the maximum security unit in Hawaii would no longer be available with the impending construction, and they transferred him to Folsome for the purpose of benefitting him with those programs.

Now--

Unidentified Justice: Benefitting him with those programs?

Mr. Lilly: --That's right.

Unidentified Justice: I suppose the alternative would have been to put him in solitary confinement, create a special cell somewhere and put him in solitary confinement permanently.

Mr. Lilly: That is exactly what we are faced with in Hawaii in this period of construction.

There were a number of inmates transferred to the mainland whose security classification remained at maximum.

Other inmates--

Unidentified Justice: Are there any prisons... You said there were prisons on a number of the islands in the chain.

How many all together, roughly?

Mr. Lilly: --One on Kauai, one on Maui, and one on the big island, Hawaii.

Unidentified Justice: The big islands.

Yes.

Mr. Lilly: Now--

Unidentified Justice: I have been bothered, and perhaps my colleagues don't share this trouble, by the kind of generality of the discussion in the Ninth Circuit's opinion and a little bit by the character of the... kind of... as opposed to focusing down on just what was involved in this particular case.

As I understand it, reading the Ninth Circuit's opinion, the prisoner complains that the panel of the board or the board that made the recommendation to transfer was biased, and your answer is that it doesn't make any difference if it was biased?

Mr. Lilly: --We don't believe--

Unidentified Justice: It doesn't give him any--

Mr. Lilly: --It doesn't make any difference.

It does not implicate due process.

It is not bias of a constitutional dimension.

There is no hint in this record at any time through even the discovery process or any time that the committee itself was biased of a... for unconstitutional reasons, such as religion or race or anything of that sort.

Unidentified Justice: --But I thought his claim of bias was just, it was the same tribunal that had had this hearing--

Mr. Lilly: Yes.

Yes.

Unidentified Justice: --and they already knew more about him than maybe he wanted them to know.

Mr. Lilly: Well, the... if you understand the process of a classification within a prison system, you will know that they have... the same bodies will review inmates periodically and on an ongoing basis, and they become familiar with inmates in the system, and how things are done, and this has a utility, because then they can make a more informed decision about placement of inmates.

It is not... as our rules are defined, impartiality means a person should not sit on the board who is a witness to events or who is a charging person, or somebody that is bringing this action before the board.

It is not impartial in any... it doesn't mean impartiality in any other sense.

I mean, we would not have--

Unidentified Justice: In a juror sense.

Mr. Lilly: --In a juror sense or even in a judge sense, because you are still going to have, in a small prison setting, you are going to have the same people come from time to time onto a committee, and we would certainly not say in the rule that the board should be a biased one.

Unidentified Justice: Would you think there are any senior staff members eligible to sit on this process who would not generally know about this fellow's record as an assaultive person?

Mr. Lilly: It is impossible, and quite the contrary, that it is important that they do know about it.

What we don't have... All we had here was the same board saw the same inmate twice, and this is the same board that saw many inmates probably more than once, two or three times, maybe even longer over a period of time, and that in itself is not partiality as defined by our rules.

They did not initiate him coming before it.

They are not a charging body or anything of that sort.

Now, the right to due process appears to arise pursuant to this Court's previous opinions either from the Constitution itself or from state law.

Now, we submit for the reasons previously stated in our briefs that there is no constitutional right not to be transferred interstate.

Unidentified Justice: But I still think that there is some problem with the way you state the thing, and maybe the fault isn't yours, but somewhere else down there.

Maybe the fault is mine.

But I presume that even though there is not any right to be free of an interstate transfer, that is, the fact you are being transferred by itself doesn't give rise to any constitutional claim, if Hawaii regulations provide that you shall have a hearing before you are transferred, and the... it doesn't say anything more than, you will just have a hearing.

Mr. Lilly: That's right.

Unidentified Justice: It doesn't require any finding of fact or anything like that.

Mr. Lilly: No.

Unidentified Justice: But nonetheless, a hearing is required, and you have a right to appear before them.

And if you could show that the board was in fact biased, that is... take an extreme case... that the prison administrator had paid one of the members of the board $100 to decide... to vote to transfer this person, would you say that didn't raise any constitutional claim?

Mr. Lilly: That presents an entirely different situation, but... and it may have some constitutional implications where you have that kind of activity.

Unidentified Justice: Well, I think what you are really arguing is that there wasn't bias here.

Mr. Lilly: Oh, I don't believe there is bias at all, but I don't believe that every single violation of a state regulation implicates some constitutional right.

Unidentified Justice: No.

I think the decisions of this Court support you in that, but I think if you have a... you can have a constitutionally biased finder of fact that passes on non-constitutional questions, and you nonetheless might have a constitutional issue.

Mr. Lilly: They may.

There is no--

Unidentified Justice: That wouldn't involve any... wouldn't be based on any liberty interest created by state law.

Mr. Lilly: --It would not.

Unidentified Justice: That would be a... you were denied due process within the meaning of the federal Constitution, I suppose.

Mr. Lilly: It would not at all, in that sense.

It would not implicate a liberty interest, which is the issue before the Court.

Unidentified Justice: If it doesn't implicate a liberty interest, why can't you be as biased as you want to be?

I mean, if you are not depriving the man of liberty, he is not entitled to due process, is he?

It is a liberty interest under state law, I said, but it might implicate a liberty interest under the federal Constitution if you deprived a person of... or he imposed grievous loss through a biased agency.

But that isn't the claim in this case.

Mr. Lilly: That isn't the claim here.

Unidentified Justice: I guess the claim in this case is that they failed to follow state law.

Mr. Lilly: They violated the state law that was provided, and I might say before I reserve the rest of my time that this rule and regulation was not adopted pursuant to the Hawaii Administrative Procedures Act, as claimed in the brief for the Respondent.

The Hawaii Administrative Procedures Act under Tai v. Chang, which is cited in the Lono versus Ariyoshi opinion, is specifically exempted because the rules and regulations of our Corrections Division involve mere internal management of our prison institutions, and has under that ground been held to be exempted from the APA.

It does not implicate the APA.

Unidentified Justice: May I ask one other question?

Because I may have missed it before... before we broke for lunch.

Did you agree that this transfer does involve grievous loss within the meaning of your regulation?

Mr. Lilly: Well, let me see if I can make that clear.

I do not agree that this implicates grievous loss as this Court may see it in the constitutional sense.

Unidentified Justice: My question is whether it involves grievous loss within the meaning of your regulation.

Mr. Lilly: Within this regulation, for purposes of the argument, yes.

Unidentified Justice: That is what I thought.

Mr. Lilly: That this is a grievous loss as the rule and regulation defines it.

Unidentified Justice: Contemplates.

Chief Justice Burger: Very well.

Mr. Johnston.

Mr. Johnston, before you start, let me ask you this.

Suppose there were no regulations at all.

He is just in prison under a valid sentence, and then all the other events took place.

Is there any kind of... is there any constitutional right to any particular process before he is transferred?

ORAL ARGUMENT OF ROBERT GILBERT JOHNSTON, ESQ.

Mr. Johnston: Your Honor, I believe under Vitek we could establish a liberty interest under the change in conditions.

There are very substantial change in conditions in a transfer from Hawaii to the mainland.

Unidentified Justice: Were there any regulations or any controlling state law in Vitek?

Mr. Johnston: In Vitek, you have a two-prong approach, as I understand it.

The first prong addresses the question of the statutes.

The second prong addresses the question of the residuum of liberty that a person retains which would preclude a transfer from the... from the prison, the mental hospital without some due process.

Unidentified Justice: Would you not think there is some difference between being transferred from an institution of pure confinement, that is, a prison, and to a mental institution, different from being transferred from one classification of prison to another?

Mr. Johnston: There would be a difference on that, Your Honor.

There is no doubt about that.

But I would submit that it is officially analogous.

Unidentified Justice: Vitek didn't rest just on the substantiality of the change of conditions, did it?

Mr. Johnston: Not entirely, Your Honor, but I believe the precise language is that there was a qualitative change in the conditions of confinement not substantiated by the terms of the sentence.

Unidentified Justice: But those words, that language must be read in the context of the facts of the case.

Mr. Johnston: Yes, Your Honor, it must, but I think that this case is sufficiently analogous, because I would submit that a transfer of a person such as Wakinekona from Hawaii under the circumstances he was transferred to the mainland indeed raises the same kind of liberty interest that is raised in Vitek on the transfer from the penal institution to the mental hospital.

Unidentified Justice: Suppose Hawaii had another... I don't know how... what's the sweep of the islands.

How many miles is it, 500, or 300, or what?

Mr. Johnston: I would say about 350 diagonally.

Unidentified Justice: Well, let's assume that the only maximum prison was 300 miles away from Honolulu, and he was... Would you say that the same constitutional factors were raised if he was transferred to the only maximum security institution available 350 miles away?

Mr. Johnston: That would raise a very difficult question, Your Honor, and I am not sure that I could justify a change of that distance.

Unidentified Justice: It would be not as difficult, but it would be certainly difficult for family to make visits, would it not, 350 miles?

Mr. Johnston: Yes, it would, if he were to be transferred to a different island entirely, because he would still have the problem of interisland or intercounty transport for the family to visit him, unless he had family on the island that it was on.

However, I would just say, if I may, Your Honor, that my recollection of the time was that there was another facility called Halava, which was approximately 15 minutes from the Hawaii State Prison located in Kalihi, just outside of Honolulu.

Now, I do believe that there were people in that place, and I do believe that we can find references to Halava in the record.

But I would like to clear up one thing right away, if I may, because there have been several questions on this point, and that is the question of the record on the impartiality of this particular tribunal.

Contrary to Mr. Lilly's position, I believe that the complaint that was filed with the supporting TRO to stop the transfer of Wakinekona raised questions that went beyond the mere violation of the regulations, and indeed, though I didn't believe in view of the court's ruling below that that question was really before the Court, I can refer the Court to the record at Pages 394 and also at Page 443 and 444, in which there are definitely questions of personal animosity raised regarding this particular tribunal as to Wakinekona.

Unidentified Justice: But that isn't the basis on which the court of appeals proceeded--

Mr. Johnston: No, it's--

Unidentified Justice: --and the issue here is violation of state procedures, is a withholding of state procedures.

Mr. Johnston: --Yes, based upon whether or not there is indeed a liberty interest created.

Unidentified Justice: Under state law.

Created by state law.

Mr. Johnston: And also, Your Honor, whether or not there is a residual of liberty that would be protected regardless of the existence of state law.

Unidentified Justice: Well, that isn't what the court of appeals said.

Mr. Johnston: No, the court of appeals, though it cited Vitek, went on the rules alone.

Unidentified Justice: It went strictly on the liberty interest created by state law.

Mr. Johnston: That is correct.

That is what--

Unidentified Justice: Do you think the opinion of the court of appeals is internally consistent?

Because in places it talks about this bias question.

Mr. Johnston: --I don't know why they did that, Your Honor.

I just don't.

There is definitely in the discovery supporting the complaints, the first complaint and then the first amended complaint, allegations of personal bias as to at least two of the members of the tribunal.

Unidentified Justice: But you would agree that the questions presented to us on review of the Ninth Circuit simply don't involve that issue?

Mr. Johnston: They don't involve the issue of bias.

They involve the issue of whether there is a liberty interest, because that was the only ruling presented by the lower court.

Unidentified Justice: So we should assume that the tribunal which did pass on this thing was totally unprejudiced?

Mr. Johnston: No, just to the contrary, because we have alleged that it was biased.

Unidentified Justice: Well, but we have to somewhat segregate the issue that is before us for decision.

We can't take into consideration in deciding the issue you say is here your other allegation that the tribunal was biased.

Mr. Johnston: Mr. Justice Rehnquist, I would believe that we should, regarding the question of personal animosity, the bias, that should be determined in the first instance by the district court.

Unidentified Justice: We would certainly leave that open in any decision we rendered, I think.

Mr. Johnston: Yes, and I would think that it would be appropriate, if there is a liberty interest here, to remand for that specific issue, because there is indeed a jury asked for in this action as to the facts, and we definitely, I believe, on the record, have a question of fact as to that point.

Unidentified Justice: The court of appeals hasn't decided a question which he raised.

Is that your basis?

Mr. Johnston: It was raised in the trial court, and the trial court didn't address it, and therefore the court of appeals didn't address it.

And if I may take another step back along the line, Justice O'Connor, the question of the rules goes beyond merely Rule 4.

We claim there is a statutory scheme involving Rules 3, 4, and 5, in this action, and it is the statutory scheme that we should be addressing in this matter.

Now--

Unidentified Justice: Well, to that extent, and to the extent of a statutory scheme or, you know, things peculiar to the Hawaii system that courts not in Hawaii might not be familiar with, I should think the best authority on that is the Supreme Court of Hawaii, and they have spoken on the question, haven't they?

Mr. Johnston: --Your Honor, in that regard, the Lono case addressed only Rule 4, because that apparently was all that was presented to it, rather than considering the other rules that should be read in conjunction.

Unidentified Justice: Well, you say should be read in conjunction.

If the Supreme Court of Hawaii was willing to read Rule 4 by itself, I presume it thought that the other rules didn't have to be read in conjunction with it.

Mr. Johnston: I would submit that perhaps counsel didn't present the other rules to the court, and that could well explain what happened.

I would also submit that in view of this Court's recent ruling in Logan versus Zimmerman Brush, that this Court indeed does have the power, if not the duty, to address this particular issue, regardless of the Lono decision.

Unidentified Justice: How are Rules 3 and 5 involved in this case?

I thought Rule 3 had to do with the adjustment process to punish a prisoner for some violation while incarcerated, and that Rule 5 had to do with legal counsel, and I did not understand that either of those rules was implicated in the allegations of the complaint.

Mr. Johnston: If I may, the... looking at the rules in total, particularly Rule 5, there are four circumstances in which an inmate is entitled to have a lawyer present at a hearing, two of which are in essence the disciplinary hearings.

The other is the classification hearing.

And part of the argument is, if you read these rules as a whole, it seems somewhat inconceivable to us that prison authorities who promulgated these rules approved by the Attorney General and by the Lieutenant Governor at that time would give a person such as Wakinekona a right to counsel in these four situations, one of which, and these are the only four situations you are entitled to lawyers in these hearings, one of which involves an interstate transfer.

Unidentified Justice: Didn't he have a lawyer?

I thought the Attorney General said he did.

Did I misunderstand him?

Mr. Johnston: Yes.

Yes, indeed, Mr. Wakinekona was represented at the classification hearing by a lawyer.

I am not suggesting that that is the defect in the hearing process.

I am just suggesting that one wouldn't expect correction authorities to give an inmate a lawyer at that particular kind of hearing unless they considered it a very important type of hearing.

And that is the thrust of Rule 5.

Unidentified Justice: Well, I suppose even conceding that the consequences of an interstate transfer are significant and important, that doesn't answer the question, does it?

That alone won't resolve the issue, will it?

Mr. Johnston: No, I think we have to look to the rules and see what has occurred in the context of this case, in view of the particular concerns that we would have for transferring somebody interstate, and in addition the rules and practices of giving a hearing in this.

I would simply--

Unidentified Justice: Now, there are no substantive standards set forth in Hawaii procedure, are there, to govern when an interstate transfer will be--

Mr. Johnston: --I would refer you to the Joint Appendix and the Rule 4, the general considerations.

In that rule, they are worried about what is--

Unidentified Justice: --What page?

Mr. Johnston: --I am sorry, Mr. Justice Rehnquist.

Page 20 of the Joint Appendix.

It starts with the Rule 4 classification hearing.

Now, it is our position the requirements of determining what is in the best interests of the community, of the prisoner, of the penal system, of the state, would indicate that there should be some reason in the minds of the drafters of the rules as to why they would hold these hearings to determine that they meet these standards set out in that particular provision.

Unidentified Justice: Well, it could be just kind of a joint right of allocation, kind of a best interest hearing, where everybody... anybody affected is entitled to be heard, but it is totally discretionary with the deciding authority.

Mr. Johnston: Well, no, I don't think we can... well, I guess we could disagree on that and make such a conclusion.

It is our position that it is really not, because you do have that provision.

You do have them holding hearings for Wakinekona, Lono, and other people that are being transferred interstate, and you do have the requirements in this particular situation that the tribunal make specific findings of facts based only on the evidence presented, which then becomes the recommendations that restrict the prison director--

Unidentified Justice: But then as determined by the Hawaii Supreme Court, the final decision is made by the facility administrator, and he is free to disregard those findings, apparently, without any substantive standard, and make the determination.

Now, that is what I understand the Hawaii Supreme Court has determined.

Mr. Johnston: --Yes, Your Honor.

I would say that that is a correct reading of the court, that... what they had before them.

And I would not try to represent differently.

And I would submit in response to that that again the court did not read, for whatever reason they didn't, the rules as a whole.

And they did not address specifically the same concerns that the Ninth Circuit did that there is a requirement of specific findings of facts which temper the discretion or the power of the prison administrator, because if we refer to Page--

Unidentified Justice: Well, so what you want us to do is say the Hawaii Supreme Court was wrong, and we aren't bound by its determination.

Mr. Johnston: --On one point, yes, Your Honor.

I am afraid that that is exactly what I am asking you to do, and I am suggesting that you do have such power, because that is exactly what this Court did in Logan versus Zimmerman Brush on the question of the Fair Employment Practices Act in Illinois.

And so that we do believe this Court has that power.

It has had that power in the past, and it has exercised that power.

And so that I think that this Court should in this case look to that Zimmerman case and read the Lono case in light of your power under Zimmerman.

I would also say, if I may, that we still contend absent the rules that Wakinekona retained a liberty interest because of the particular circumstances in this case.

He is transferred across the Pacific Ocean to California, isolated from other Hawaiians entirely, isolated from his family, his friends, effective assistance of counsel, the Hawaii corrections agencies.

He is also put in a position where he can't reach social workers who are trained to dealing with persons such as Wakinekona.

Unidentified Justice: Well, doesn't Folsome have a prison advocacy group and social workers surrounding it?

I mean, isn't he transferred to Folsome?

Mr. Johnston: As a matter of fact, when he was transferred to Folsome, he was kept in maximum security there without any programs.

Unidentified Justice: Well, but I mean, you say, no access to counsel.

I mean, don't most prisons have a legal advocacy group--

Mr. Johnston: I am suggesting that in Wakinekona's case, a factor which is unique to this situation among the questions of distance is also the consideration that Wakinekona, if in Hawaii, would have access to workers who are trained to deal with a person such as Wakinekona who is a native Hawaiian.

Unidentified Justice: --Well, but you can say the same thing in southern California.

A prisoner might have access to workers trained to deal with Spanish-speaking people, because there are so many in southern California.

If he is transferred to a correctional center in Springfield, Missouri, he probably won't, but I don't think the distinction turns on that.

Mr. Johnston: I am not saying it turns solely on that.

Unidentified Justice: Do you suggest that is a constitutional factor?

Mr. Johnston: I am suggesting the total impact of all these factors I am addressing raises a liberty interest which gives Wakinekona an entitlement to a due process hearing which would basically in any prison situation include an impartial or a fair tribunal, because we don't have many of the other accoutrements of due process in prison hearings.

Understandably so, but... so that that becomes the core question of due process in any prison hearing, a fair tribunal, because you really are not allowed to address the questions of cross examination, confrontation of witnesses, and those.

Those due process rights are cut back on you in prison hearings usually.

Unidentified Justice: Mr. Johnston, you don't need to show the deprivation of a constitutionally protected liberty interest in order to show that you may be entitled to an unbiased tribunal, do you?

Mr. Johnston: I would think that you are entitled as a matter of course to an unbiased tribunal.

However, the way the lower court ruled on it, as I understand it, they felt that there had to be a liberty interest to entitle you to any due process hearing whatsoever.

Unidentified Justice: I think the Ninth Circuit's opinion has really balled up this whole thing, if you will pardon me for saying so, because I think that it is very indistinct just what the parties are arguing about.

Do you concede that you would have to show a protected liberty interest is at stake in the hearing before the tribunal before you can complain of a constitutionally biased tribunal?

Mr. Johnston: No, Your Honor, and that is the position we took in the lower court, in the trial court, but we didn't win on that point.

Unidentified Justice: So you changed your strategy.

Mr. Johnston: No, I didn't change the strategy, if I may.

I think I have to address what the lower court left me with.

Mr. Justice Rehnquist, I would be delighted to take this case back and try it in front of the federal district court in Hawaii.

Unidentified Justice: You were entitled to ask for affirmance on another ground, even if you lost on it below and didn't cross appeal or anything.

You could ask for affirmance on another ground, as long as it is supported by the record.

Mr. Johnston: Well, yes, Your Honor.

We do believe that the record does reveal that, and we did, by the way, raise that issue of a bias and personal animosity in the lower court.

Unidentified Justice: That claim, that is not on the... on a claim that the due process clause of the federal constitution has been violated because you have been deprived of your life, your liberty, or your property, and probably your liberty, without due process of law.

Mr. Johnston: That is the only thing I think Mr. Wakinekona can claim here, and that he has indeed been deprived of his liberty because there was an interest where he should be entitled to somebody that made this decision.

Unidentified Justice: The Ninth Circuit said you win based on liberty interest created by the procedural protections of state law.

Mr. Johnston: Yes, they went on that point, Your Honor, but that was not the only point we had been arguing.

Unidentified Justice: Is there any evidence in this record on which any court at this stage could pass on the claims of bias?

Mr. Johnston: Your Honor, again, I would refer you to the various pages I did, but the answer is yes.

I think looking first at the original complaint that was filed... it is probably around Page... somewhere about Page 12.

Unidentified Justice: That is the complaint.

I am talking about evidence.

What evidence was presented in the district court?

Mr. Johnston: There was an affidavit attached to that.

There are answers to interrogatories and requests to admit that raised the question of the personal bias of Petitioner Wilhelm and Smythe.

Unidentified Justice: Did the district court make any findings on that issue?

Mr. Johnston: No, the district court did not address any of the discovery.

Indeed, the district court took the particular position that the... it was a motion to dismiss in essence rather than a summary judgment.

Unidentified Justice: Then you could not rely on that issue in this court or in the court of appeals, absent some evidence, could you?

Mr. Johnston: Well, Your Honor, I don't think we should be thrown out on that point.

I think we should be allowed to have a hearing on that.

Unidentified Justice: Yes.

But it can't be resolved here or in the court of appeals with finality--

Mr. Johnston: No, Your Honor.

Unidentified Justice: --because there is a limited amount of evidence.

Mr. Johnston: I would agree that... if the Court agrees that Wakinekona has an interest that entitles him to a due process hearing, that that matter should be remanded back down to the federal district court of Hawaii to resolve that matter, and then perhaps we could ignore the Ninth Circuit opinion, if it is going to cause the grief that it seems to be causing.

Unidentified Justice: I may have spoken too hastily.

Assume that you have the kind of situation in Meachum against Fano, where the court says that although you may have... there may have been a process for some sort of a hearing, nonetheless there was no substantive standard, no deprivation of any liberty interest, just in the transfer from one prison within a state to the other.

Now, supposing you end up coupling that... the allegation that would lose under Meachum against Fano with an allegation that the prison administrator had to make some sort of a finding was constitutionally biased against you.

Now, does that get you into the constitutional ball park, so to speak?

It is not life.

It is not liberty.

It is not property.

I may have been too hasty in suggesting before that I thought there was a difference.

Mr. Johnston: As I understand it, really, the question is, Fano would insist that there be a liberty interest created in order to have procedural protections.

Unidentified Justice: Well, in order to guarantee an unbiased tribunal it would be a constitutional dimension.

Mr. Johnston: I would believe that Fano would take that position, but, Your Honor, I think that Fano has been rather severely cut back by the case of Vitek, and I would suggest that our case is almost on all fours with Vitek on both of the points that we are addressing.

Unidentified Justice: Well, it isn't--

--The same author wrote both of them, didn't he?

Mr. Johnston: Yes, I am aware of that, Your Honor.

Unidentified Justice: Yes, you are about to be asked about it, too.

0 [Generallaughter.]

You really can't sustain that unless you answer the Chief Justice's question a while ago a certain way.

Suppose there weren't any regulations, and there was just a transfer to a mainland prison from Hawaii, and you come in and say, well, transferring interstate when it has these consequences is such... is just not within the contemplation of a sentence.

It is just not the kind of a thing that a person in prison should have to contemplate.

That is the basis Vitek proceeded on.

Now, are you suggesting that an interstate transfer is just out of bounds, without a hearing?

Mr. Johnston: I am suggesting this particular interstate transfer is out of bounds, because it in essence, as we have argued--

Unidentified Justice: So you do agree, you have to say that it is just out of bounds in the sense that no prison administrator should contemplate making this kind of a transfer without a hearing, whether there are regulations or not.

Mr. Johnston: --Yes, that is one point, Your Honor, and as I said--

Unidentified Justice: You have to make that point to rely on Vitek.

Mr. Johnston: --Correct, Your Honor.

Unidentified Justice: Which is not the basis the court of appeals went on.

Mr. Johnston: That is correct, Your Honor.

Unidentified Justice: Then what would be your position, again, on an interisland transfer if it were 350 miles apart?

Mr. Johnston: Your Honor, as in any case where we begin to move the distances back and forth a little bit, the distance should be a factor to be taken into account.

I think the distance is rather misleading, because it is the impact or the effect of the distance upon the prisoner on an intrastate transfer that I think is important.

The isolation.

In this case, Wakinekona is indeed in for life without possibility of parole as a young man.

In essence, he could be left up in California, isolated from Hawaii for the rest of his life, in their prison system.

So that I would submit that under those circumstances, this comes to the closest thing I have seen in modern jurisprudence to banishment.

Unidentified Justice: What if he had been assigned to that prison by the State of Hawaii in the first instance on the ground that they had no facilities adequate to take care of him?

Mr. Johnston: Mr. Chief Justice, that raises the issue that we have made a finding that they have no facilities adequate, which presupposes, I take it, a hearing.

I would think that under those circumstances, that would be appropriate.

I don't think I can argue that the state could never transfer him.

I am not suggesting that to the Court.

I am suggesting that if they wish to transfer a person such as Wakinekona from Hawaii, that that should require under the second point in Vitek a due process hearing, because it is so far out of bounds to send somebody like Wakinekona away forever that it just strikes me... it is outrageous to banish somebody from their homeland.

Unidentified Justice: A hearing even if there are no standards to determine whether the transfer should be ordered or not?

Just the hearing?

Mr. Johnston: In this case, yes.

If we were to take that position, Justice O'Connor, I then think we would be faced with what process is then due.

However, here we do have standards of what process is due.

Unidentified Justice: Well, that is debatable, I guess, isn't it, if you read the Hawaii court decision?

Mr. Johnston: I am afraid that I can't dispute that point, but I do think that this Court can look past the Hawaii decision in this instance, because of the underlying due process concerns of an impartial tribunal, and I do think that this Court can even ignore the question of the regulations and look to the question of whether or not a transfer of this nature for Wakinekona is so outrageous that there should be a hearing to decide if there is justifiable reason to send him across the sea.

Unidentified Justice: Well, you are bound to have to mix your procedural argument with a substantive argument, aren't you?

You might... You could have... give you all the process you wanted, and then just transfer you, but then you are bound to then have to say, well, the reasons weren't good enough.

Mr. Johnston: Well, I don't... I--

Unidentified Justice: Which isn't really a procedural--

Mr. Johnston: --I would think that we could contrive as an advocate for somebody almost any argument we wished, but I would hope that we wouldn't go that far, Justice White.

I would think that--

Unidentified Justice: --You think you could shame them into not transferring if you had some procedures?

Mr. Johnston: --I would think--

Unidentified Justice: Or talk them into--

Mr. Johnston: --I would think that we would have perhaps had a very good chance of prevailing at that time if indeed we had a neutral or an impartial hearing board rather than the one that was personally biased against Wakinekona, and I do think we should be entitled to give that at least a chance, because otherwise, as I say, Mr. Wakinekona is gone forever, as far as we can tell at this point.

So that I would... I would submit, then, that we have both those points.

I think those procedural rules, if they don't... if we call them procedural rules, the character of procedure in substance sliding in this set of rules--

Unidentified Justice: --The kind of procedural rules, was this "lawyer" a fellow inmate?

Mr. Johnston: --No.

Unidentified Justice: It was a regular lawyer?

Mr. Johnston: It was a regular lawyer who asked for an extension of time in order to prepare the case, and then the whole problem--

Unidentified Justice: Right.

Mr. Johnston: --began to develop when we complained about the character of the particular tribunal as being a tribunal that was biased, and the bias goes to personal animosity and violation of the rules, both, not just violation of the rules, and I think that that makes it an important difference.

But I do think that the procedural rules, if I may, do infer some sort of substantive right, usually.

It is... I find it difficult as a lawyer to believe that we create procedural rules without--

Unidentified Justice: How about the right of allocution, which is strictly a procedural rule?

I don't think it imparts any substantive right at all.

A prisoner can appear before the sentencing authority, the judge, and you know, talk for 30 minutes, and there is no substantive contact that needs come out of that from the judge at all.

He can still give exactly the same sentence as he would have before.

Mr. Johnston: --Well, I think that under these rules that we do have a hearing, that they are entitled to find these points because of the introductory paragraphs to Rule 3.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Lilly?

Mr. Lilly: Very briefly.

Chief Justice Burger: You have four minutes remaining.

ORAL ARGUMENT OF MICHAEL A. LILLY, ESQ. -- REBUTTAL

Mr. Lilly: I don't believe that it is inconceivable that a procedural rule cannot implicate some kind of liberty interest if it is construed by the state that it does so, that another liberty interest by virtue of the rules do, but in this case we have the Lono versus Ariyoshi opinion, that specifically says that this rule does not give rise to any expectation of liberty.

It does not give rise to any expectation that Mr. Wakinekona will spend the rest of his incarceration in Hawaii absent some kind of good cause.

So, we don't have that situation before us.

Unidentified Justice: May I ask you this question, Mr. Lilly?

Supposing you had no rules at all, which in effect you are saying that is what the Hawaii decision amounts to here... there are no substantive rules... and the prisoner alleged that it is, in his words, a grievous loss to have to be transferred to the mainland, and that the only reason he is being transferred is because of the personal animosity that the man who has the power to make the transfer has toward him personally.

He just doesn't like him.

Would he have a claim or not?

Mr. Lilly: Not federal claim.

Unidentified Justice: You don't think he would have a federal claim.

Because that is pretty much what this case is, I guess.

Mr. Lilly: That is what he is claiming, is some kind of personal animosity.

Unidentified Justice: Yes, and your position is, there is no constitutional protection to an arbitrary transfer in the sense of just motivated by hatred, personal hatred, or something.

Mr. Lilly: Yes, Justice Stevens, and also, it was the administrator that made the decision, not the hearing body.

There is no allegation of bias on the part of the administrator.

Unidentified Justice: Well, I think we have to assume, because the complaint is dismissed on its face, that there was an adequate allegation of bias.

Maybe it doesn't make any difference if there is no liberty interest involved.

Mr. Lilly: There is no allegation of bias in the complaint against the decision-maker, Antone Olim, the person who made the decision to transfer, the one who has--

Unidentified Justice: Well, but wasn't it made by a hearing board of several people?

Mr. Lilly: --You have a hearing body of four people who make a recommendation to the administrator, who makes the decision.

He alleges bias on the part of two members of that hearing body.

Unidentified Justice: I see.

Mr. Lilly: But not--

Unidentified Justice: But from your point of view, it would be the same case even if the administrator were biased.

Mr. Lilly: --That's right.

It would be the same case.

In fact, the purpose, if I may say briefly, the purpose of these rules is, it is an administrative tool.

It is an informational gathering device.

It is not a fact-finding process, as characterized by counsel, as the adjustment process is.

This is a means of gathering information to assist the decision-makers.

It is a means of providing inmate input.

It is a means to benefit inmates.

And it also is--

Unidentified Justice: A form of therapy?

Mr. Lilly: --One of the reasons why prisons traditionally have these kinds of procedures is because they find inmate frustrations and tensions lowered when they have some kind of input.

If decisions are made without any reasons, without any input, without any contact, they feel very frustrated, and so they have rules like this to involve inmates in it, and they feel better about it.

It has a utility.

Unidentified Justice: Even if it is just kind of a charade?

Mr. Lilly: Well, the ultimate decision is... it is not a charade, and I don't think it is a mindless event.

It is not intended to be a mindless event.

It is meant to be an informational gathering process.

Unidentified Justice: Isn't it somewhat a parallel to the grievance procedures in labor relations?

Mr. Lilly: It is, and--

Unidentified Justice: To try to resolve these matters at the lowest level possible on the way up?

Mr. Lilly: --And Mr. Wakinekona also had a review process under the rules, which he didn't partake of.

Unidentified Justice: What if you read the Ninth Circuit opinion as resting on a decision that he had a right to a hearing under state law, and surely that if he had a right to a hearing, he ought to have a right to a hearing by an unbiased decision-maker.

Mr. Lilly: The problem with the analysis is that the due process analysis breaks down when you say that the right to a hearing implicates liberty, and therefore you have a right to a due process hearing to protect your right to a hearing.

Unidentified Justice: Well, what if you interpret it then that here is the state imposing substantial hardships on him by a decision of a biased decision-maker.

Mr. Lilly: And what we say is, that is not of a constitutional dimension, Justice White.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.