Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument next in No. 95-1352, Gary Edwards and Tana Wood v. Jerry Balisok.

You may proceed.

MS. KATHLEEN D. MIX: Mr. Chief Justice, and may it please the Court:

This case presents issues at the intersection of the Civil Rights Act and the habeas corpus statute.

In his civil rights complaint, Mr. Balisok seeks relief from harm stemming from allegedly unconstitutional procedures at a prison disciplinary hearing.

Although the liberty interest that has given rise to these procedural protections is the loss of good-time credits,

Mr. Balisok does not seek restoration of those good-time credits in this action and reserves that claim for a later time.

CHIEF JUSTICE REHNQUIST: He has not finally waived it or surrendered it, though, has he?

MS. MIX: Mr. Balisok has specifically reserved his right to contest and litigate over the loss of good-time credits at a later--at a later time.

JUSTICE ANTHONY KENNEDY: One minor point. He alleges at some point that he's a pretrial detainee, that his conviction was overturned.

Do these good-time credits apply to some other conviction or--

MS. MIX: No. They would still apply to that conviction, and--

JUSTICE KENNEDY: He says that the conviction was overturned, although he's still in custody. I just didn't know how that plays out.

MS. MIX: Yes. I think he was still in custody pending recharging on the same situation.

So, he was still subject to a good-time credit application and denial process while incarcerated.

So, it made no difference in his--

JUSTICE KENNEDY: So, the good-time credits apply in case he's convicted again? Is that it?

MS. MIX: Yes, they would still be applying to his total term of confinement. That is correct.

CHIEF JUSTICE REHNQUIST: This is a retrial on the same charge that was earlier overturned?

MS. MIX: I believe so, Mr. Chief Justice.

JUSTICE KENNEDY: And has he been retried?

MS. MIX: I believe so, yes.

CHIEF JUSTICE REHNQUIST: Well, then why--wouldn't the whole good-time calculus begin anew if he were--if he were convicted?

MS. MIX: I think the good-time calculus would be made on his total time of confinement, if I understand the system right.

So, he's receiving credit for time served while he's in a pretrial detention status, and the good time is going to be calculated on the whole of his sentence.

As a result of the allegations of this complaint, the question presented by this case is whether certain prisoner cases which purport to be about due process procedures, but which may inevitably or logically entail a shorter duration of confinement should proceed as habeas corpus actions with the attendant exhaustion requirement--

JUSTICE JOHN PAUL STEVENS: May I just add one point to it? You said inevitably be shorter.

Do you disagree with his argument that there is a State law doctrine that he may or may not lose his good-time credits?

MS. MIX: I'm not sure precisely which doctrine you're referring to.

JUSTICE STEVENS: Well, the same or other evidence. I forget the--some, yes.

MS. MIX: The some ev--the some evidence standard?

MS. MIX: It is correct that if there was a lack of some evidence in the hearing, that our position would be that his good time could not stand, that the hearing should be reversed.

But we do not agree with Mr. Balisok that that is the only basis upon which the hearing sanction could be reversed.

If you--

JUSTICE RUTH BADER GINSBURG: That?s odd.

MS. MIX: --take his position as expressed, that the some evidence standard is the only basis to reverse a hearing sanction, then it renders the rest of the rule protections meaningless.

You could have serious due process violations and under the theory advanced by Mr. Balisok, those serious due process violations could not result in a reversal of the sanction imposed in the disciplinary hearing.

JUSTICE STEVENS: I'm not sure I totally understand your answer. Let me rephrase my question, if I may.

Is it correct that at least in theory he could win this lawsuit and say there were Federal violations of his procedural rights, rights of--violations of his Federal procedural rights and nevertheless end up still losing his good-time credits?

Is that a possibility?

MS. MIX: That he could win this particular suit--

JUSTICE STEVENS: And not get his good-time credits restored.

MS. MIX: Our position is that that is not what would occur, that if he were to--

JUSTICE STEVENS: Well, is it--is it possible or just unlikely in your view?

I mean, what I--you're saying you don't think it will happen, but your whole argument is based on if this could result, that's enough, but I'm just wondering if you agree that it will not necessarily result.

MS. MIX: We believe that the allegations that Mr. Balisok has made necessarily invalidate the sanction of his--imposed in his hearing, that they are so serious.

They go to the fundamental--

JUSTICE STEVENS: And they necessarily would require the restoration of his good-time credits?

MS. MIX: Yes, under the Heck test.

JUSTICE STEVENS: Then in order for you to prevail, you would not have to advocate the rule that you do advocate in your brief.

MS. MIX: That is correct.

JUSTICE STEVENS: I see.

JUSTICE DAVID H. SOUTER: And are you--are you taking the position now that if he succeeds here and then ultimately does challenge his confinement on habe that you're not going to claim harmless error?

Are you taking that position right now? There's no harmless error doctrine?

MS. MIX: With respect to the claims that he is asserting in this complaint that they are serious enough that a harmless error doctrine would not be brought to bear on these claims, but I--

JUSTICE SOUTER: Some due process claims would be subject to harmless error, but this would not.

MS. MIX: That is correct. That is--

JUSTICE SOUTER: What is it peculiar about this that disentitles it to a harmless error analysis?

MS. MIX: The nature of the allegations made by Mr. Balisok are the arbitrary denial of witness statements that go to his fundamental ability to prove his innocence and put forth a case and prove his innocence before the disciplinary hearing.

JUSTICE ANTONIN SCALIA: But what if those witness statements are brought in and it turns out they're really not very relevant at all? You'd still say no harmless error?

MS. MIX: No. At that point I think a district court looking at that or a State court in habeas corpus, could conclude that there was harmless error--

JUSTICE SOUTER: Then there's nothing inevitable in this case.

MS. MIX: But just looking at the allegations of the complaint as stated, our position is that some due process violation, some allegations that alleged serious deviations from the rule of standards, will inevitably lead to the restoration of good time.

JUSTICE SOUTER: Yes, but you've just said--excuse me. Have you not just said in answer to Justice Scalia that we in fact cannot tell at this stage whether this is one of those cases?

MS. MIX: We think this is one of those cases, but the State of Washington--

JUSTICE SOUTER: You know what the witnesses are going to say? You know, for example, that his hypothetical cannot be true in this case?

MS. MIX: No. You don?t--you don't know that. You have--you have to look at just the bare, naked allegations of the complaint to make that determination.

JUSTICE SOUTER: But doesn't it--isn't it the case--and I don't want to go on too much longer with this, but isn't it the case that based on the allegations, you simply cannot tell in this case whether the--whether his success at this stage will inevitably result in an entitlement to reduced time? You cannot tell.

MS. MIX: Well, we have--we have not wanted to concede that point in this case because--

JUSTICE SOUTER: I realize.

MS. MIX:--we think they are so serious.

But I think it is true in the prison disciplinary context, unlike the criminal arena that the Court analyzed in Heck, that it is more difficult to say certain allegations inevitably will affect the outcome because of the application of the harmless error doctrine in prison disciplinary hearings and because--

JUSTICE KENNEDY: One of the--one of the oddities in this area is that we have the State arguing that the prisoner is probably going to prevail in all of these procedural matters, and in order to establish a 1983 suit, the prisoner argues the contrary.

We've got you switching positions, which makes me wonder if the doctrine isn't incongruous at its foundation.

MS. MIX: Yes. We realize that we were elevating Mr. Balisok's claims to a certain degree by our position.

But I think the problem is that the--as I said, the prison disciplinary context is a more fact-bound determination and you do not have the same principles--

CHIEF JUSTICE REHNQUIST: Well--

MS. MIX: --to apply in that context that you have in the criminal arena--

CHIEF JUSTICE REHNQUIST: The question you present in your petition for certiorari is whether Heck bars the 1983 action brought by a prisoner challenging prisoner disciplinary procedures, if the success of that action would necessarily imply the invalidity of the prisoner's loss of good time.

Now, that was the language used in Heck I believe, necessarily imply, but that could mean--is there a probability, a possibility, or a certainty?

That really is what we have to decide here, what that language in Heck meant?

MS. MIX: Yes, and that certainly is the language in Heck, and I think, Mr. Chief Justice, the problem you have in a prison disciplinary case is--in a case like Balisok, is that if we can't conclude that there is a 100 percent chance that the sanction is going to be reversed, then the lower courts are saying, that doesn't meet that language in Heck that says necessarily invalidate.

And so, he can have his case one degree removed. It can be very, very serious allegations.

Yet, the court can't say with 100 percent certainty that this is a case that will necessarily invalidate the sanction and that case will go forward in 1983.

JUSTICE SANDRA DAY O?CONNOR: Well, are you--are you asking us to make some clarification of Heck or change it in some way?

MS. MIX: We are proposing that the Court adopt what we refer to as a bright line rule to address a broader context of cases, particularly prison disciplinary-- JUSTICE O?CONNOR: Well--so, your answer is yes to my question?

MS. MIX: Yes. JUSTICE O?CONNOR: You do want a change or a clarification in Heck.

MS. MIX: Yes. I don't think you have to change the holding in Heck, and certainly, as Mr. Balisok has suggested, we are not asking for a reversal of Heck.

But we do think that the Court needs to clarify language in Heck and language in Wolff v. McDonnell.

JUSTICE SCALIA: Ms. Mix, this is bait and switch.

We just decided Heck a couple of years ago. We would not have taken this case in order to decide whether we should reconsider a case just decided.

And--the question you presented in your petition was, does this Court's ruling in Heck bar a 1983 action that would nec--that would necessarily imply the invalidity of the prisoner's loss of good time?

That's how you put the question, and I assumed we were going to have a case before us where it would necessarily imply the invalidity and that the Ninth Circuit ignored what Heck seemed to say very clearly, that where it--not seemed to say, said very clearly--that where it would necessarily imply invalidity or shortening of the sentence, you have to do it by habeas.

Now you come before us with a totally different proposition that Heck is inadequate to the real world and we should adopt some new proposition.

Well, I mean, that may be a nice argument, but I resent being forced to confront that argument when it's not what I thought we were taking the case for.

MS. MIX: Well, Justice Scalia, what we have done is we have argued that Heck is applicable to a category of cases in the prison disciplinary context and that it does fit squarely into that context, that lower courts are doing that.

JUSTICE SCALIA: I thought the issue was whether good-time credits comes within Heck.

That is simply whether eliminating a good-time credit is part of necessarily shortening the sentence.

MS. MIX: Mm-hmm.

JUSTICE SCALIA: That's what I thought the issue we were going to grapple with was. But, gee, very little of the debate--in fact, I think none of the debate--goes to that point.

MS. MIX: Justice Scalia, I think that whichever route the Court goes with this case, it is very important to say that Heck explicitly applies in the prison disciplinary context and that good-time credits are, as the courts have consistently found, within the definition of fact and duration of confinement for the--

JUSTICE SCALIA: And it would do some good just to decide that point, right, even if we don't reconsider Heck and adopt a much more expansive rule?

MS. MIX: It would do some good to address that point, but there will continue to be difficulties just under that rule because the courts--the courts such as the Ninth Circuit, can take a very serious--

JUSTICE SCALIA: And maybe some day we'll agree to consider those difficulties, but I didn't think we had agreed to consider them here.

MS. MIX: What I'm saying, though, is even if you make explicit that Heck applies to the prison disciplinary context, if the lower courts are going to say, but nothing fits within the necessary invalidation rule of Heck, the rigors of the Heck test, then we haven't achieved very much.

JUSTICE GINSBURG: Ms. Mix, I'm confused and perhaps you can help me. It seems like everything that you are discussing is academic because this--in this case, as I understand the prisoner's complaint, he's not saying that the conduct, the bad conduct in which he engaged in, isn't conduct that's subject to a good-time reduction.

What he's saying is I'm a jailhouse lawyer, and I'm going to be brought up on these disciplinary charges, and most of the time they've got me.

But I want the procedure to be fair. So, I'm talking about not giving me witness statements or witness statements that aren't date-stamped.

So, I'm not arguing that I'm ever entitled in any of these proceedings to keep that good time.

I'm not talking about whether I was a bad actor in prison. All I'm saying is I want a procedure that isn't infected by these witness statements.

And so, I read his complaint and I say, well, he's not talking about the possibility of good time at all.

He's saying, whenever there's discipline in this prison, I want to make sure that I have a fair procedure.

And I may, if I did the bad act, sure, they can take away my good time.

So, how do we even get to your question?

MS. MIX: That is how Mr. Balisok has presented his complaint certainly and how he would like his complaint to be read, but we have to remember a couple of things.

One is that he has specifically reserved his right to go challenge his good time later, and by allowing him to proceed with just a procedures challenge, to rectify the procedures that you have described, what we do in that case is we put the procedural interest ahead of the substantive interest.

We allow--

JUSTICE GINSBURG: Well, what's wrong with that? What's wrong with saying if a prison going to have a disciplinary proceeding, it's got to be fair? And that's very basic.

MS. MIX: Because that--this Court has said on a number of occasions that procedural due process exists in the first instance to protect against the mistaken and unjustified depravation of liberty.

And the vindication of those procedural rights should not be at the expense of the substantive interest that they are there to protect.

And in this situation, what will happen is he will get his procedural victory in his 1983 action, and then he will take that procedural victory back to the Washington State courts and use it to bolster or demand relief on his loss of good time on his substantive claims.

JUSTICE STEVENS: Is that--is that necessarily true?

Isn't it at least possible if he won this case, you could have another prison disciplinary action and rein--follow all the procedures he requests and come to the same conclusion?

MS. MIX: That is correct, but I would characterize that, Justice Stevens, as comparable to a new trial, a new hearing, where the relief that he--

JUSTICE STEVENS: A new trial that ended up with exactly the same period of incarceration as he got with the unfair trial.

That happens a lot in the criminal area.

MS. MIX: But the remedy that is given, the rehearing or the retrial, should be given by a court sitting in habeas corpus, not by a 1983 court.

CHIEF JUSTICE REHNQUIST: The Ninth Circuit in this case, Ms. Mix, as I understand it, relied on its earlier opinion in Gotcher against Wood.

And am I right in thinking in that case they said that an inmate's challenge to the procedure by which he was denied good-time credits does not call into question the continuing--the lawfulness of his continuing confinement, in effect, saying that good-time credits, one way or the other, do not require any resort to habeas?

MS. MIX: Their conclusion is that simply challenging the procedures doesn't call into question the good time.

I don't think they're saying that the good time isn't--or that Heck isn't--doesn't apply to a situation where good time is at issue.

JUSTICE SCALIA: Their position is that just challenging the procedures never calls into question the good time. Isn't that right?

Even if they gave him no hearing at all and the most--even in a case where it's clear--

MS. MIX: I think--

JUSTICE SCALIA: --that there is--that there was harmful error, the Ninth Circuit would say good-time credits just don't count for purposes of Heck. Isn't that right?

MS. MIX: I think--I think that is correct. I think--

JUSTICE SCALIA: And you take the other extreme. You say even when there--even when the error is harmless, good-time credits do count for purposes of Heck.

And maybe you're both wrong.

MS. MIX: I suppose that's possible. This is a question that has many answers to it.

But I think the--I think that the problem with what the Ninth Circuit has done and what we have seen other circuit courts doing is they're relying on the language in Wolff and they're relying on the language in Heck that says a procedures-only challenge that does not necessarily vitiate the good time can go forward.

Yet, there are a large category of cases where the good time is called into question and where, although it might not necessarily be taken away, when the court looks at the issue, it may not reach harm--a harmless error conclusion, but it still may reach a conclusion that that good time should be restored.

JUSTICE KENNEDY: I'll look at Heck. Was that--was that a direct quote when you said necessarily?

Does Heck use the word necessarily? Does it go that far?

MS. MIX: Heck uses the term I think in relation to the Wolff--the Wolff--

JUSTICE KENNEDY: Yes.

MS. MIX: --passage, necessarily vitiate.

JUSTICE KENNEDY: Necessarily vitiate, yes.

MS. MIX: Yes. Yes, that is correct.

JUSTICE GINSBURG: Suppose Mr. Balisok had gotten his disciplinary sanction, hadn't attacked it, and then brought a suit--

MS. MIX: I'm sorry. I didn't--

JUSTICE GINSBURG: Suppose instead of this emerging in a particular disciplinary action,

Mr. Balisok had brought a separate action in which he said I've been disciplined before, I'm likely to be disciplined again.

The procedure is unfair, and I want--I'm bringing this 1983 suit to get the procedure fixed so that if and when I'm disciplined again, I'll get a fair procedure.

Would that be a permissible suit to bring under 1983?

MS. MIX: Yes, I believe it would be because he would not be under--suffering from any sanction that affected the fact and duration of confinement sufficient to put it into habeas.

It is--it is an anticipatory action. Now, whether he would have standing would be another question.

But we think there are two types of suits that could go forward as you have described, Justice Ginsburg.

One would be that purely anticipatory suit, assuming he can establish standing, and the other way the inmate can get around this issue is he can concede that the result is right.

If it is the procedural interest that the inmate wants to vindicate, if he wants the procedures corrected and not done in a certain way in the future, let him make good on that and enter into some sort of binding concession that says, I am not challenging the result of this hearing.

Right now these rules out of Wolff and out of Heck don't provide for that.

So, we can have a situation like Balisok's where he has specifically reserved that right and he may go forward on that claim for the good time later armed with a victory in 1983.

And what that does in a case like this is it deprives the State court of the first opportunity to look at claims and issues that affect the fact and duration of confinement.

And this Court has specifically said that should not occur under principles of comity.

So, we are--we are very concerned that that will be the result unless some boundaries are drawn around the language in Wolff and in Heck.

What we will end up with in that situation, if he is allowed to go forward in 83 and then goes back to State court, is the potential--flat-out potential--for conflicting results between these two courts.

And the public good should--and the discretion of the--of the court should be exercised in recognition that the public good does not--

JUSTICE SCALIA: We don't have any discretion under section 1983. I mean, some of us think we have discretion under habeas corpus, but we certainly don't have any under 1983.

I under--I understood Heck to say that only by reason of a clear congressional policy that there should be exhaustion of State remedies before habeas corpus occurs.

We could read the other Federal statute, that Federal statute, to impose a statutory limitation upon 1983 that where the 1983 action necessarily boils down to habeas corpus, to the same thing, you should require exhaustion.

But you're asking us to go much further in order to pursue a policy that may well be a desirable policy, but I don't know how we have the discretion to read 1983, which is categorical on its face.

What statute do you--do you appeal to that modifies 1983 to such a degree that even where it does not boil down necessarily to the same thing as habeas corpus, we may require exhaustion?

MS. MIX: Justice Scalia, I think the answer to that is when a--when a prisoner is challenging procedures, where the challenge to that procedure logically will affect and call into question the very language the Court used into--in Heck, the confinement, then that is a case that involves the fact and duration of confinement, and it should proceed first in Federal habeas corpus.

JUSTICE SCALIA: But you?ve?

MS. MIX: It's not imposing an exhaustion request.

JUSTICE SCALIA: But you've acknowledged that it does not necessarily call into question--

MS. MIX: Well, we--

JUSTICE SCALIA: --the confinement.

MS. MIX: Granted that can be the case in many prisoner cases, but I think what we need to do is look at what is the next natural step after Heck in dealing with claims that call into question confinement, effect of duration and confinement--

JUSTICE SCALIA: The next natural step is another Federal statute, going beyond the statute that enabled us to go as far as we did in Heck.

MS. MIX: Justice Scalia, I disagree. I think that the Court has struggled for years in trying to deal with the intersection between the Civil Rights Act and the habeas corpus statute, and the lower courts continue to express confusion on how to apply these two statutes.

And it doesn't take a congressional action to address this issue. It takes this Court to give some more rules in this area as to how these two statutes--

JUSTICE GINSBURG: But you say that Mr. Balisok could do exactly what on the surface he seems to want to do, which is to get a fair procedure, disciplinary procedure, installed, and he could do that under 1983, but he has to pay a price.

That is, he has to say, even if the good time was taken away from me in an unfair procedure,

I am giving up my right to the equivalent of a new trial so that I can bring the 1983 action.

That's what you're saying in essence, that this is not a case where he must exhaust.

He could bring it as a 1983 action, but he must say, I will never seek restoration of those credits.

MS. MIX: He has an alternative. He can either concede that--

JUSTICE GINSBURG: Well, that's what you are saying. He can--

MS. MIX: That?s right.

JUSTICE GINSBURG: --he's got a good 1983 suit--

MS. MIX: Mm-hmm.

JUSTICE GINSBURG: --but he has to say, I won't try to get back those good-time credits even though, if I win the 1983 action, it will be clear that the procedure that was used to discipline people in this prison was unconstitutional.

MS. MIX: His alternative to conceding that result is go--to go first into State court and attempt to have the State court look at the substantive liberty interest that is at issue.

Those are expedited proceedings. Those are excellent proceedings by which he can quickly--

JUSTICE GINSBURG: But if he prefers the Federal forum, he can have it.

There's nothing disabling about his claim. He can have it in a Federal forum, but he has to give up the good time.

MS. MIX: That is correct, but I think he still has other avenues back into the Federal forum should he choose the exhaustion route first, and even if he should not prevail in that and be subject to a harmless error situation under the rule that we have proposed, the broader rule that we have proposed, he could then go forward with a nominal damages claim, another--other Carey-type claims because he would not be foreclosed on that.

I will reserve the rest of my time for rebuttal.

CHIEF JUSTICE REHNQUIST: Very well, Ms. Mix. Mr. Rice, we'll hear from you.

MR. THOMAS H. SPEEDY RICE: Mr. Chief Justice, and may it please the Court:

There are four important points raised by this case.

The first one is, is Wolff v. McDonnell and Heck v. Humphrey good law? And yes, it is.

Second, do the Heck principles apply to prison disciplinary hearings? Yes, they do.

Third, is it important for our system of justice that prisoners be permitted to file 1983 claims to protect violations of procedural due process at prison hearings? Yes, it is.

And finally, does Mr. Balisok's amended complaint state a valid claim for a violation of procedure as set out in Wolff and Heck? And it does.

JUSTICE SCALIA: Number two was not agreed to by the decision below, though, was it? I mean, the--

MR. RICE: The--

JUSTICE SCALIA: --unreported decision of the Ninth Circuit seemed to indicate that all challenges to prison procedures are exempt from Heck.

MR. RICE: No, Your Honor. The Ninth Circuit decision applied Heck. What it said was, if you're simply attacking procedure, then the Heck principle of does it necessarily imply invalidity doesn't apply.

JUSTICE SCALIA: Let me take the opposite side of the side I was taking with Ms. Mix.

Is it possible just to attack procedure?

Isn't any--in at least any attack looking retrospectively to a procedure that has already occurred, as opposed to a suit enjoining future use of that procedure, doesn't any such suit necessarily involve a challenge to the elimination of good-time credits?

Otherwise, you have no standing. You can't come in and just complain that somebody in the past committed a procedure that was wrong but that didn't hurt you in any respect.

Isn't--at least as far as the allegations of the complaint is concerned, doesn't a challenge to the denial of past good-time credits because of invalid procedure always necessarily involve a claim that you should get good-time credits restored?

MR. RICE: No, it does not.

JUSTICE SCALIA: It doesn?t?

MR. RICE: If you look at this Court's decisions under like Carey v. Piphus or Memphis School District or Wolff v. McDonnell, this Court has clearly said that a consti--a depravation of a constitutional procedure is in itself a violation and you have to have--you have standing--

JUSTICE SCALIA: We've never said that. Even where you acknowledge that the procedure made no difference to you?

MR. RICE: Well, the procedure made a difference, Your Honor, because he wasn't allowed to call a witness at a hearing.

JUSTICE SCALIA: That's the procedure.

MR. RICE: That's the procedure.

JUSTICE SCALIA: What's the difference? The difference is he was denied good-time credits that he should have been allowed.

MR. RICE: The difference is--the difference is that he wasn't allowed to have a witness at a hearing and whether or not that--whether or not--

JUSTICE SCALIA: And he does not have to go ahead and say, in order to have standing, and that made a difference in the outcome.

He doesn't have to say that?

MR. RICE: He has to say for standing purposes that he had a right to call that and that it may have affected the outcome of the hearing, not that it would have affected, that he had a right to have those witnesses there.

Those witnesses are a basic constitutional right--

JUSTICE SCALIA: He does not have to assert that it affected the outcome of the hearing.

MR. RICE: He has to assert that it may have affected the outcome of the hearing.

JUSTICE SCALIA: Just that it may have?

MR. RICE: Well, because he can't, under 1983 and the habeas dichotomy, Your Honor, because the decision as to whether it would have affected the outcome belongs in State court.

That's purely a State court decision under habeas.

JUSTICE SCALIA: No.

JUSTICE SOUTER: What--you're equating the outcome of the hearing with an eventual order of release, aren't you?

He may very well say not only that it may have, but it did affect the outcome of the hearing.

But for that error, I would not have been--I would not have had my good time subtracted, but it doesn't follow from that that he is necessarily entitled to have the good time restored and the period of his incarceration shortened.

Isn't that the distinction that you want to make?

MR. RICE: That's correct, Your Honor, because in the State of Washington and in most States, when a prisoner goes in to attack habeas, he is going in under a standard of, one, some or any evidence that upholds the hearing.

And in the State of Washington, in particular, they have held that where you allege a constitutional violation such as in the case of In re Burton where they were denied notice of the hearing, which is one of the fundamental rights this Court guaranteed, the State of Washington didn't automatically reverse that, but said they had to show an actual and substantial prejudice for that constitutional violation.

That's different than the standard under 1983.

JUSTICE SCALIA: One is never denied due process. One is denied something without due process.

MR. RICE: Yes.

JUSTICE SCALIA: The process itself is worthless.

Something has been taken away from you without the process that either the Constitution or a statute requires, and that is your grievance.

But it seems to me the grievance in every one of these prisoner actions is, I have wrongly been denied good-time credit, and that is necessarily an assertion that I should get out earlier than they're going to let me out.

MR. RICE: The grievance is that he was denied the right to present witnesses.

In fact, he was lied to by the prison officials, and that, yes, had he presented those witnesses, it may have made a difference in the outcome of the hearing.

We don't know that and we don't know that in 1983. That's a decision for State court to decide.

JUSTICE GINSBURG: Are you saying it's--he's saying, it's not inevitable that I will get my good time, but at least I'll have a shot at it? I'll have a fairer shot.

What I'd like to do is to get those good-time credits, and if I get my fair procedure, maybe I'll have a better chance, but it's not inevitable that if I win my procedural argument, I'm going to get the credits.

Is that--

MR. RICE: If the Court held that he was denied constitutional procedure under 1983 and awarded him the injunction he seeks and nominal damages, he would--it would not necessarily imply any change in the outcome of his hearing at all.

And--

JUSTICE GINSBURG: But wouldn't he have to have something in the--I thought his situation is, I've had an unfair trial, so at least I ought to get my good-time credits restored, and then we can have a fair disciplinary proceeding and maybe they'll be taken away again.

Isn't that really what you're saying is going on here?

MR. RICE: No, Your Honor, I'm not. I'm ultimately saying that this Court needs to determine under 1983 whether or not proper prison procedures were followed.

In Wolff v. McDonnell, in Superintendent v. Hill, this Court said that there are four basic, bottom line rights to a fair hearing in prison.

JUSTICE GINSBURG: Yes, but procedural rights don't exist in the air. They have to be, as Justice Scalia just pointed out, for the purpose of protecting something. And here it seems to me what they're protecting is the man's liberty. Right?

MR. RICE: The--yes, the liberty interest and good-time credits and the right to a fair hearing. That's what it's protecting.

CHIEF JUSTICE REHNQUIST: Well, you say, Mr. Rice, that he would get a declaration of some sort in the Federal court that he had been denied procedural rights in the--in the disciplinary proceeding.

And then you envision him going to State court and taking that declaration then. What does he do in the State court?

MR. RICE: Well, he would go to State court, if he had the opportunity to, to go to State court.

He could present that declaration from the Federal court.

But the State court doesn't have to honor it, and the State court under nine--under 2254 and habeas has the first right of review to determine whether or not the facts presented make any difference in the hearing result or the outcome of the hearing.

CHIEF JUSTICE REHNQUIST: Well, that seems like a very strange bifurcation.

You know, we like--we think of things ordinarily if you can do something in one procedure, you--and you contemplate I gather this totally divided procedure.

Half of it takes place in Federal court and half in State court?

MR. RICE: They're separate and distinct procedures, Mr. Chief Justice.

They--

JUSTICE KENNEDY: Well, but surely we had that same objection that the Chief Justice is questioning when you're attacking the conviction itself.

We said this is very intrusive on State judicial mechanisms for us to second-guess their judgment of convictions.

MR. RICE: Well, absolutely.

JUSTICE KENNEDY: And yet--and yet, that seems to be the very process that you're holding out here as the solution to some of the questions we've been raising in the--in the context of good time.

MR. RICE: Well, an attack to the conviction or the sentence imposed at the conviction by Federal statute under habeas must be done in habeas corpus and must exhaust State remedies.

But an attack to an illegal--

JUSTICE KENNEDY: Well, that's because we've said so.

MR. RICE: What?s--

JUSTICE KENNEDY: And we've said so in order to preserve the State from Federal interference.

And I think what we're asking here in exploring how we best interpret Heck is whether or not those same State/Federal interests don't control.

MR. RICE: Well, Your Honor, they don't because, one, 1983 is a different statute which doesn't require exhaustion.

This Court in Patsy, in the case--

JUSTICE KENNEDY: Yes, but we were talking about 1983 in the context of the collateral attack on a conviction as well.

MR. RICE: That's true, but in there--in Heck you also affirmed Wolff and said an attack to the procedure that doesn't necessarily imply the invalidity of the conviction or the sentence is valid and can go forward.

JUSTICE SCALIA: Why doesn't this necessarily imply the invalidity of the sentence if you consider as the sentence the increase by reason of the denial of his good-time credits?

MR. RICE: It doesn't imply it, Your Honor, because when he goes to State court, when he goes to the--to the attack of habeas--

JUSTICE SCALIA: That denial of good-time credits is invalid. If you want to deny good-time credits, you have to go through the whole thing again with a new procedure, but the past denial is automatically invalid once you decide the procedure was wrong.

Isn't it--

MR. RICE: It's not automatic. No, sir, it's not. Because under--when he goes into habeas corpus, there's an entirely different standard the court is looking at.

JUSTICE SCALIA: No, no, no. I'm just talking about he comes and challenges under 1983 the procedures.

The procedures are found to be improper. Okay?

Does that not mean that the thing has to be done again and that the prior denial of good-time credits is invalidated?

MR. RICE: It does not.

JUSTICE SCALIA: It does not even imply that?

MR. RICE: It im--it may--it implies the procedures were--

JUSTICE SCALIA: Careful, because what it says, whether a judgment would necessarily imply the invalidity of his conviction or sentence.

MR. RICE: Correct.

JUSTICE SCALIA: And I don't see how it's possible to say that when you--when you prevail under 1983 on the ground that the procedures were wrong, that does not imply that the denial of good-time credits was in error.

MR. RICE: Well, Your Honor, this Court used Footnote 7 in Heck to explain what it meant by necessarily imply, and in Footnote 7 this Court said if the attack on procedures had a different doctrine such as inevitable discovery or harmless error, then our holding that the procedure was invalid doesn't necessarily imply the invalidity of the conviction or sentence because of other doctrines which intersect on that issue.

JUSTICE KENNEDY: Well--

CHIEF JUSTICE REHNQUIST: Under your theory, Mr. Rice, could you go into Federal court and say with respect to a trial in which you had been found guilty of a criminal offense that you had been denied the right of counsel and that the Federal judge says, well, you know, that should be in habeas.

You say, well, no, I'm not trying to challenge my conviction here. I just want nominal damages for being denied the right to counsel.

And then could you--so, then the Federal court says, okay, I find you were denied the right.

Can you then take that over to State court and say, look, I've got a finding that I was denied counsel, so set my conviction aside?

MR. RICE: Your Honor, you can reach certain levels of constitutional depravation that no court would hold a fair hearing.

Now, in the denial of counsel, the question becomes, did the person waive counsel? Did they--were they coming back later after a proper waiver?

CHIEF JUSTICE REHNQUIST: And can a Federal court make that determination without--in a 1983 action?

MR. RICE: I think that immunities granted in the judicial context would prohibit a Federal court from making that--

CHIEF JUSTICE REHNQUIST: Well, immunity is an affirmative defense.

MR. RICE: Right.

JUSTICE SCALIA: Mr. Rice, the difference in Footnote 7 that you appeal to is this.

The example given in Footnote 7 is an unconstitutional search and seizure.

You have standing to challenge an unconstitutional search and seizure regardless of its effect upon your conviction. It is a wrong in and of itself.

But you have no standing to challenge the depravation of procedures unless you allege that those procedures have affected or may have affected the reduction of your sentence.

The example given in Footnote 7 has no relationship to the present case.

There was standing to challenge a separate unconstitutional act, but the unlawful act you're claiming here is an act that you have the ability to challenge only by reason of your assertion that it affected your sentence.

That's a different situation entirely.

MR. RICE: Well, Your Honor, I?d go back to this Court's precedent in Carey v. Piphus and in Memphis School District where there was a challenge to an unconstitutional procedure which the Court said it wouldn't have affected the outcome of the hearing.

It would not have mattered, and that the challenge to a constitutional procedure on the right to a fair hearing--it doesn't entitle you to actual damages.

It doesn't entitle you to any other damages other than the injunction on the hearing and nominal damages, which you can get, and to vindicate that right.

JUSTICE SCALIA: It's significant that Footnote 7 does not refer to harmless error.

It says that there are other doctrines such as independent source and inevitable discovery.

MR. RICE: And it also says, and of course, harmless error under Arizona v. Fulmanente.

So, it does refer to all three, Your Honor.

JUSTICE SOUTER: Isn't it enough for your case, Mr. Rice, to admit the possibility that there may be some procedural depravations that simply couldn't be cured?

I don't know whether that's so in this context, but let's assume that it's a possibility.

MR. RICE: Well--

JUSTICE SOUTER: And then simply say, but that is not the issue in this case and there is no claim that this is one of them.

And as long as there would have to be a further step before any ultimate determination that the sentence should be--of any ultimate determination that the sentence be shortened, so long as there would have to be a further step, whether it be a harmless error step or the application of this some evidence doctrine, whatever, as long as there would have to be a further step, then you don't have the inevitability that our prior case, that Heck and Humphrey, spoke of. Isn't that enough for you to prevail?

MR. RICE: Yes, it is enough for us to prevail.

JUSTICE SOUTER: Now, is that something different from what I understood a moment ago you to be arguing which was there's a further step simply because there would be no collateral estoppel or no res judicata effect in a--in a State court?

MR. RICE: That's correct because of the State having the some or any evidence standard, having a substantial and actual injury for a constitutional--

JUSTICE SOUTER: Okay, but wouldn't your argument be exactly the same if, let's say, suddenly tomorrow morning you could show that a return to the State court would be futile?

You would still have to prove more than just a procedural violation before you would be entitled to any ultimate relief, let's say, on Federal habe. Isn't that correct?

MR. RICE: On Federal habeas, that's correct.

JUSTICE SOUTER: Yes, and that's enough for you to win--I understood your argument to be--

MR. RICE: Right.

JUSTICE SOUTER: --that that's enough for you to win this case.

MR. RICE: That's enough for us to win.

JUSTICE SOUTER: Yes.

JUSTICE STEPHEN G. BREYER: Can you explain--for a minute, I would appreciate going back to the Chief Justice's question.

As I read Heck--and I was coming new to it--and trying to work out how it would apply to the mine run--maybe yours is or isn't--mine run kind of case where a prisoner says there was some procedural violation at my disciplinary hearing. A mine run case.

I thought the problem in Heck is that 1983 normally requires no exhaustion. Patsy.

But habeas law seems to require something that looks like exhaustion, and therefore you have to reconcile it.

In reconciling them, I can imagine it would make sense to say, sorry, 1983 requires no exhaustion. That's the end of it.

Or to say it requires exhaustion for prison cases because of habeas. Go exhaust.

But what I can't understand is how it could lead to a hybrid system where you get the both--worst of both worlds.

You have to keep running between one--or you can run between one court and another, get half your case decided in Federal court, then get the other half decided in State court.

Why does that make sense in terms of the effort to reconcile 1983 with habeas law?

MR. RICE: While it seems convoluted, Your Honor, it makes sense because there is very distinct and separate remedies in 1983 and in habeas corpus.

In habeas corpus all you can get is a reversal of the hearing or return of your good time.

You cannot get an injunction to attack an improper procedure or to try and stop the conduct from occurring again and again and again.

JUSTICE BREYER: Mm-hmm.

MR. RICE: 1983 allows you to go in and get a declaration and injunction to stop the conduct from occurring, and in many ways, it's a more efficient remedy than habeas corpus.

So, the two doctrines are separate and they operate separately. And this Court said in Wolff and it has said over and again in different cases like Heck that you could actually have them both at the same time, because they're addressing such different standards and different matters of proof, and they're statutorily created by Congress.

Now, to further answer your question why you may not have this back and forth again and the trouble you're concerned about is in April of 1980--1996 Congress passed the Prisoner Litigation Reform Act.

It addressed virtually all of the questions that the State is concerned about.

First, you have to exhaust--when they looked at exhaustion--and Congress looked at exhaustion, they said we're going to make prisoners exhaust State administrative remedies, not judicial or court remedies.

That--on the administrative remedies, Mr. Balisok has done that.

Second, for how the petition to go, it said, if you're attacking conditions in the prison or conduct of the guards affecting confinement, you can proceed under 1983. Congress has said that.

If you're attacking the result of the hearing or a term of confinement, you have to go to habeas corpus. Those are the two routes you have a choice to do. They're separate.

As for these claims going forward, Congress has said, you know, there have been too many of them, so we're going to enact a three strikes and you're out provision.

Three frivolous or malicious claims, you're gone. We're going to make prisoners do filing fees. We're going to make them pay for that.

So, we're going to have prisoners pay their judgment to the attorney fee.

CHIEF JUSTICE REHNQUIST: Actually three strikes and you're in, isn't it?

(Laughter.)

MR. RICE: Well, three strikes and you're in. You're right, Your Honor. Exactly.

But Congress has addressed all of the concerns about the different claims.

JUSTICE SCALIA: Mr. Rice, what was the relief asked for in this--in this lawsuit?

MR. RICE: Mr. Balisok asked for a declaration that the conduct of the guards was unconstitutional.

He asked for an injunction to have--to have them stop that conduct in the future, that if they have statements in their hand--and his allegations are that they had the statements, and they told him they didn't exist.

His third is for damages and according to proof to the court. Now, after the Prison Litigation Reform Act, that's just nominal damages.

And his fourth is a general claim for any other relief the Court deems just and equitable. That's the only claims of relief in this case.

JUSTICE KENNEDY: In his--if he prevailed and he had a determination, a declaratory judgment, that his rights had been violated by the guards, would that not have preclusive effect as to that finding against the State in a State court--in a subsequent State court proceeding? The State?s a party.

MR. RICE: Not really, Your Honor, and here's why. While it may have--it may say, all right, that fact is determined.

28 U.S.C. 2254 by Federal statute grants to the States the right of independent review in habeas corpus.

So, if the State felt that its hands were tied by that determination, it could discard it or even come to a different interpretation because of what's granted to it under 2254(b) which is a right of independent determination.

Also, there's no requirement that a Federal judgment be given preclusive effect in State court.

JUSTICE KENNEDY: Is there in Washington law?

MR. RICE: No, there is not, not that I'm aware of. The State can look at it--

JUSTICE KENNEDY: But the State can--

MR. RICE: --but the State is not required to adopt it.

So, in that respect, the State can come in and look and say, all right, we've got this finding in Federal court, and the first thing it looks at under--

JUSTICE GINSBURG: May I just--that went by me very quickly.

I thought there was something about the supremacy of Federal law that would require a Federal court to honor--a State court to honor a Federal judgment.

MR. RICE: Your Honor, a Federal court--a State court is required to honor a sister court judgment under full faith and credit of the Constitution, and a Federal court must honor a State court judgment under the full faith and credit statute.

There is no Federal statute which requires a State court--

JUSTICE GINSBURG: But there is the Supremacy Clause.

MR. RICE: The Supremacy Clause would infer to the State that it should give deference to the Federal court judgment.

JUSTICE GINSBURG: You're saying that a court decree doesn't count as a Federal act.

MR. RICE: In terms of applying it to 2254 which gives the State the right of independent review, that the State court can look separate from the Federal judgment in 1983.

JUSTICE GINSBURG: I thought--and maybe I'm wrong about this--that it was well accepted that essentially the Federal court judgment gets the same full faith and credit in a State court that a sister State that--the notion that a Federal court judgment is entitled less--to less respect in State A than a judgment of a sister State,

State B judgment, that's very strange to me, and I frankly don't think it's the law.

MR. RICE: Well, Your Honor, it's my understanding that the Suprem--that the full faith and credit of the Constitution goes State to State and that the full faith and credit statute governs both.

JUSTICE GINSBURG: Yes, but the--but there are other doctrines and one of them is the supremacy of Federal law--

JUSTICE STEVENS: Your stronger argument I suppose is that you can give full faith and credit to the judgment and still not revoke his good time.

MR. RICE: It would not revoke his good time because of the State court rights under some or any evidence.

JUSTICE GINSBURG: That's a much sounder argument.

MR. RICE: Pardon me?

JUSTICE GINSBURG: That's a much sounder argument than to say that a State --

JUSTICE KENNEDY: Well--

JUSTICE GINSBURG: --court doesn't have to give, in effect, full faith and credit to a Federal judgment.

JUSTICE KENNEDY: Yes. That's quite a different point as to whether or not it must accept as binding the fact that, say, the officer mislabeled or con--or destroyed or concealed the documents.

MR. RICE: Well, Your Honor, when the decision--when the 1983 decision goes into State court, the State court has several avenues to look at the facts of the case independently.

2254 says you've got a right of first review.

Washington's law under some or any evidence--and I refer to the In re Burton where they said not--any meager evidence, even inferential evidence, is enough to support the finding of the disciplinary board, and once they find any evidence, the analysis stops.

It's not a weighing decision between the court--between is this good evidence and this bad evidence.

This Court affirmed that rule in Superintendent v. Hill where it said for prison disciplinary hearing review, it--

JUSTICE KENNEDY: But 2254 applies to Federal court proceedings, and you're saying there's also a provision in 2254 that says a State court--

MR. RICE: 2254(b) says that a State court has the first--gives the States the first right of review on habeas grounds.

You have to have that exhaustion. The State has to have the independent right to make that determination.

JUSTICE SOUTER: Yes, but the whole assumption of the 1983 action is that it is not functionally equivalent to habeas. So, I don't see why that would apply.

MR. RICE: I don't--

JUSTICE SOUTER: I mean, the--2254 is applying habeas versus habeas, State versus Federal.

MR. RICE: Right.

JUSTICE SOUTER: The whole premise of our argument is that the--that the 1983 action is not to be regarded as a covert habeas action under certain circumstances.

MR. RICE: It's not a covert habeas action at all.

JUSTICE SOUTER: So--

MR. RICE: But it depends upon--

JUSTICE SOUTER: So, therefore, 2254 doesn't have any application one way or the other, does it?

MR. RICE: It has application with regard to what the State standard is when it reviews a prisoner habeas petition.

That?s where it has--that's where it has application, and the State standard on review of a prisoner habeas petition is the right of first and independent review.

JUSTICE KENNEDY: Well, we could look at this later. 2254, as I--including (b), applies to the State--what the State court must do, and it must first defer to its--pardon me--what a Federal court must do, and it must first defer to the State court.

MR. RICE: That's right, and that has been interpreted--

JUSTICE KENNEDY: And it has been interpreted to say that the State court need not be bound by any prior Federal judgment?

MR. RICE: Well, look--you can look at the language in Heck v. Humphrey where the State of--where the State there was saying you have to in Heck-- you can't allow this ruling to afford in Heck because it's going to be preclusion in State court, and the opinion in Heck addresses that point and says, no, it's not going to be preclusion.

Preclusion may not be--may not apply and it may not even be permissible.

And it sets out in Footnote 11, I believe, why that's so, because 2254 is stat--Federal statute and the preclusion is judge-made law, court-made law.

So, 2254 governs over court-made law when you weigh the two, and 2254 will give the independent review to the State.

So, if you look at Heck in Footnote 11, that's fully explained by this Court why preclusion wouldn't apply.

Mr. Balisok is simply asking for a right to review an unconstitutional procedure.

Prisoners in the United States have really just four when it comes to fair hearings: a right to notice, a right to time to prepare, a right to present witnesses so long as it doesn't interfere with prison discipline or administration, and a written finding of fact.

There's only four things that are given to prisoners.

He was--he's simply asking in this case that these guards who had witness statements that he had asked for, who deliberately told them they didn't exist, that didn't date-stamp them so that he couldn't prove they existed at the time, but were later found in his file--that he have the right to have a ruling under 1983 that that conduct is unfair and it's unconstitutional and it shouldn't be permitted.

JUSTICE SCALIA: Mr. Rice, I've been looking for Footnote 11 in Heck v. Humphrey. I don't--

MR. RICE: Well--

JUSTICE KENNEDY: It ends with footnote 10.

JUSTICE SCALIA: Yes.

MR. RICE: No, Footnote 10--

JUSTICE SCALIA: Is that the footnote that we thought better of and didn't issue? (Laughter.)

MR. RICE: Footnote 9. I'm sorry, Your Honor.

JUSTICE SCALIA: I see.

MR. RICE: Look at Footnote 9 where this Court says, while we have no occasion to rule on the matter at this time, it is at least plain that preclusion will not necessarily be an automatic or even permissible effect.

And then in the explanation of that, it says, the court-made preclusion rules may, as judicial application of categorical mandate of section 1983 may not, take account of the policy embodied in section 2254(b)'s exhaustion requirement that State courts be given the first opportunity to review constitutional claims bearing upon State prisoner release from custody.

So, that's where you get the dichotomy on the case where 1983 deals with procedure, an unconstitutional procedure.

But we are not asking for return of his good time. We're not asking for a reversal of the hearing.

We're saying this was a hearing involving good time, which is a liberty interest. This Court has said that good time still remains that.

And second, when you've got a liberty interest at stake, you are entitled to a minimum of due process for a fair hearing.

And that's all we're in court asking for this--for Mr. Balisok to have is his hearing--is a right to a fair hearing.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Rice. Ms. Mix, you have 3 minutes remaining.

MS. MIX: Thank you, Mr. Chief Justice.

Even if there is no preclusion with respect to the successful 1983 action,

I think the primary concern that the State has is that the State interests and comity interests are not served by the State having a second independent opportunity to look at this claim.

And the problem that we have with what has been described here is exactly the situation of running between the courts where Mr. Balisok says, well, yes, indeed he will go back to State court and present this declaration to the State court, this declaration of a Federal court, that there have been procedural violations of constitutional magnitude at this hearing.

And the State court is in the position at that point of either rendering an inconsistent result with a Federal district court that has looked at the same issue or the State courts and State officials are in the position of being persuaded by that--

JUSTICE STEVENS: Of course, it is true that this problem only arises if you lose in the Federal court.

Most of these cases you're going to win in the Federal court.

MS. MIX: If he win--if--

JUSTICE STEVENS: That's right.

MS. MIX: Yes, if he wins in a Federal court, we'll have that problem, and that is the precise situation that leads to conflict among the courts that this Court has said should not be allowed to occur.

And the situation gets even worse because if Mr. Balisok then wins in his State habeas corpus petition, he has yet another avenue back into Federal court for the actual harm from the confinement.

So, we have multiple times into the courts and multiple avenues into Federal courts when we bifurcate these actions and allow a 1983 procedures-only claim to proceed as described by Mr. Balisok.

The second point I'd like to address is just a question of whether the procedures are part and parcel of the liberty, and we think very much that they are.

The second part of the Heck holding is very critical with respect to our rule.

Heck not only barred damages for unlawful confinement, but it also barred claims for harm caused by unlawful actions that rendered confinement invalid. And if the--

JUSTICE STEVENS: What--do you have any comment on Carey against Piphus?

MS. MIX: Under the rules we have proposed, Carey could remain a good rule in that it would allow nominal damages for the violation of procedural rights, but only after there had been exhaustion of remedies through the habeas corpus procedures.

So, if there is a finding of error but it's harmless error, that procedural right could still go forward for a nominal damages claim under Carey.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Mix. The case is submitted.