Carver v. Lehman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH CARVER, 

Plaintiff-Appellant,

No. 06-35176

v.

JOSEPH LEHMAN; KIMBERLY ACKER;  D.C. No.

CV-04-05570-RBL

VICTORIA ROBERTS; SIX TO BE

OPINION

NAMED DEFENDANTS,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued April 17, 2007

Submitted April 28, 2008

San Francisco, California

Filed December 22, 2008

Before: Stephen Reinhardt, Richard C. Tallman, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Concurrence by Judge Reinhardt

16643

16646 CARVER v. LEHMAN

COUNSEL

Rob McKenna, Sara J. Olson, and Gregory J. Rosen, Office

of the Washington Attorney General, Criminal Justice Divi-

sion, Olympia, Washington, for the defendants-appellees.

CARVER v. LEHMAN 16647

Tyler A. Baker, Todd Gregorian, and Heather N. Mewes, Fen-

wick & West, LLP, Mountain View, California, for the

plaintiff-appellant.

Rob McKenna, Sara J. Olson, and Gregory J. Rosen, Office

of the Washington Attorney General, Criminal Justice Divi-

sion, Olympia, Washington, for the defendants-appellees.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

This case presents the question whether a Washington state

law providing for convicted sex offenders’ early release into

community custody creates a liberty interest that is protected

under the Due Process Clause of the Fourteenth Amendment.

We hold that it does not. We therefore affirm the decision of

the district court denying Carver relief in this civil rights

action.

Factual and Procedural Background

In August 1999, Joseph Dale Carver, then 20 years old,

pled guilty to child molestation in the third degree. This con-

viction followed two prior convictions for child molestation

in the first degree and a conviction for third-degree assault.

Carver committed his first sex offense at age 14. He was sen-

tenced to fifty-four months of confinement in the custody of

the Washington State Department of Corrections (“DOC”) for

his 1999 conviction. The brief record on appeal indicates Car-

ver committed fifteen disciplinary infractions while incarcer-

ated, including sexual harassment of a prison staff member.

Washington Revised Code § 9.94A.728(1)(b)(ii)(B)(I) pro-

hibits early release for those convicted of sex offenses. How-

ever, section 9.94A.728(2)(a) provides that sex offenders may

16648 CARVER v. LEHMAN

become eligible for transfer to community custody in lieu of

early release.1 Carver was sentenced to a consecutive thirty-

six month period of community custody to begin on his

adjusted release date.2 Carver’s behavior as a prisoner resulted

in an adjusted release date of January 13, 2003.

Before an inmate is eligible for transfer to community cus-

tody, he must submit an acceptable “release plan.” WASH.

REV. CODE § 9.94A.728(2)(c). Carver submitted his proposed

plan in March 2002. It was denied in April 2002, pursuant to

a DOC policy then in effect which provided for the categori-

cal denial of release plans of offenders, like Carver, whom the

DOC determined “appear[ed] to meet the definition of a sexu-

ally violent predator and [who had] been referred for Civil

Commitment . . . .” DOC Policy Directive 350.200 (May 4,

2001).3 As a result of the denial of his proposed release plan,

Carver served his full term of confinement.

1

“Community custody is the intense monitoring of an offender in the

community for a period of at least one year after release or transfer from

confinement. Although it has other purposes, community custody contin-

ues in the nature of punishment, and is not equivalent to general release.”

In re Crowder, 985 P.2d 944, 945 (Wash. Ct. App. 1999) (footnote omit-

ted). Offenders in community custody live in a residence pre-approved by

the DOC and are subject to mandatory and discretionary conditions

imposed by either the DOC or the sentencing court. See, e.g., WASH. REV.

CODE §§ 9.94A.710(2)-(3), 9.94A.700(4)-(5) (listing mandatory and dis-

cretionary conditions imposed on offenders subject to community custody

including reporting requirements, payment of supervision fees, and prohi-

bitions against possession of controlled substances and consumption of

alcohol).

2

When an inmate is first transferred to the DOC, the DOC calculates

three possible release dates for the inmate. First, the maximum release

date is the date the inmate would finish serving the entire sentence

imposed. Second, the earned early release date is the date the inmate

would be released if he earned all available sentence reductions and does

not lose time for misbehavior. Third, the adjusted release date is the pro-

jected date on which the inmate would be released if he loses no further

good time or earned time credits.

3

As we explain infra, this policy was subsequently struck down by the

Washington Court of Appeals in In re Dutcher, 60 P.3d 635, 640 (Wash.

Ct. App. 2002) (holding that “DOC Policy 350.200 . . . violates the gov-

erning statutes”).

CARVER v. LEHMAN 16649

In September 2004, Carver filed a civil rights suit under 42

U.S.C. § 1983, asserting that DOC officials denied him early

release into community custody without affording him due

process of law under the Fourteenth Amendment.4 The district

court, adopting the report and recommendation of the magis-

trate judge, granted the DOC officials’ motion for summary

judgment on two principal grounds: first, that Washington law

does not create a liberty interest in early release into commu-

nity custody and, therefore, Carver did not have a due process

right protected by the Fourteenth Amendment; and second,

that even if such a right existed, Defendant Lehman was enti-

tled to qualified immunity. Carver timely appealed.

Jurisdiction and Standard of Review

We have jurisdiction to review the district court’s determi-

nation pursuant to 28 U.S.C. § 1291, and we review de novo

its grant of summary judgment and finding of qualified immu-

nity. See Mabe v. San Bernardino County, Dep’t of Pub. Soc.

Servs., 237 F.3d 1101, 1106 (9th Cir. 2001); Galen v. County

of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007).

Discussion

[1] The Due Process Clause of the Fourteenth Amendment

provides that no state shall “deprive any person of life, liberty,

or property, without due process of law. . . .” U.S. Const.

amend. XIV, § 1. Our analysis of due process claims proceeds

4

Carver’s original complaint named as a defendant only Joseph Leh-

man, secretary of the DOC at the time that Carver’s release plan was

denied. In his amended complaint, Carver named two additional defen-

dants, Kimberley Acker and Victoria Roberts, both DOC officials

involved in making end of sentence review determinations. The district

court adopted the magistrate judge’s finding that Acker and Roberts were

entitled to summary judgment because Carver failed to show that “these

defendants played any part in enacting the policy that precluded [Carver]

from being considered for release.” Carver does not appeal this portion of

the judgment below.

16650 CARVER v. LEHMAN

in two steps. “[T]he first asks whether there exists a liberty or

property interest which has been interfered with by the State;

the second examines whether the procedures attendant upon

that deprivation were constitutionally sufficient.” Ky. Dep’t of

Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citation omit-

ted).

[2] “A liberty interest may arise from either of two sources:

the due process clause itself or state law.” Toussaint v.

McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986). Carver con-

cedes that the Due Process Clause does not create a liberty

interest in an inmate’s “conditional[ ] release[ ] before the

expiration of a valid sentence.” Greenholtz v. Inmates of the

Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Rather,

he argues that Washington’s statutory scheme governing early

release into community custody “uses mandatory language,

‘creat[ing] a presumption that . . . release will be granted’ . . .

unless certain designated findings are made, and thereby gives

rise to a constitutional liberty interest.” McQuillion v. Dun-

can, 306 F.3d 895, 901 (9th Cir. 2002) (quoting Greenholtz,

442 U.S. at 12; citing Bd. of Pardons v. Allen, 482 U.S. 369,

377-78 (1987)). As in prior cases, our task here is to apply the

well-established mandatory language rule governing state-

created liberty interests set forth by the Supreme Court in

Greenholtz and Allen to the Washington sex offender statu-

tory scheme at issue.5 See, e.g., Sass v. Cal. Bd. of Prison

5

In his response brief, Lehman argued that Sandin v. Connor, 515 U.S.

472 (1995), should control our liberty interest inquiry. In Sandin, the

Supreme Court considered a challenge to a prison regulation imposing

disciplinary segregation for misconduct. Id. at 475-77. In holding that the

regulation did not create a liberty interest, the Court did not apply the

“mandatory language” framework of Greenholtz and Allen. Id. at 481-86.

Instead, it focused on whether the challenged restraint arising from the

regulation “impose[d] atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Id. at 484; see also Wil-

kinson v. Austin, 545 U.S. 209, 222-24 (2005) (applying Sandin to deter-

mine whether Ohio inmates have a liberty interest in avoiding placement

in a “supermax” prison). As Lehman properly conceded in his supplemen-

CARVER v. LEHMAN 16651

Terms, 461 F.3d 1123, 1127-28 (9th Cir. 2006) (holding that

California law creates a liberty interest in parole); Biggs v.

Terhune, 334 F.3d 910, 914 (9th Cir. 2003) (same); McQuil-

lion, 306 F.3d at 901-902 (same); Bermudez v. Duenas, 936

F.2d 1064, 1065-66 (9th Cir. 1991) (holding that Guam law

creates a liberty interest in parole); Baumann v. Ariz. Dep’t of

Corr., 754 F.2d 841, 843-45 (9th Cir. 1989) (holding that Ari-

zona law does not create a liberty interest in custodial

release); Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 469-

70 (9th Cir. 1989) (holding that Idaho law does not create a

liberty interest in parole).

[3] Washington law mandates that an individual convicted

of a sex offense be sentenced to a term of community custody

that “shall begin either upon completion of the term of con-

finement or at such time as the offender is transferred to com-

munity custody in lieu of earned release.” WASH. REV. CODE

§ 9.94A.710(1). Unlike other inmates, then, a convicted sex

offender who accrues “earned release time . . . for good

behavior and good performance” is not entitled to early

release; rather, he is eligible for discretionary transfer into

community custody at an earlier date if his proposed place-

ment is appropriate. Id. § 9.94A.728(1), (2)(a). The law

requires the DOC to develop a suitable program to effectuate

the transfer to community custody of such inmates. See id.

§ 9.94A.728(1). As part of that program, the DOC must “re-

quire the offender to propose a release plan that includes an

tal submissions to the court, we have since held that Sandin’s holding was

limited to “the separate but related question of when due process liberty

interests are created by internal prison regulations.” McQuillion, 306 F.3d

at 902-03 (emphasis added). See also Sass, 461 F.3d at 1127 n.3 (explain-

ing that this court has “consistently rejected th[e] argument” that Sandin

eliminated the “ ‘mandatory language’ approach of Greenholtz and

Allen”). Accordingly, we continue to apply the “mandatory language” rule

set forth in Greenholtz and Allen in order to determine whether Washing-

ton’s statutory scheme creates a liberty interest in early release into com-

munity custody.

16652 CARVER v. LEHMAN

approved residence and living arrangement.” Id.

§ 9.94A.728(2)(c). The law then describes how the DOC, in

exercising its broad discretion, should evaluate such release

plans:

The department may deny transfer to community

custody status in lieu of earned release time pursuant

to subsection (1) of this section if the department

determines an offender’s release plan, including pro-

posed residence location and living arrangements,

[1] may violate the conditions of the sentence or

conditions of supervision, [2] place the offender at

risk to violate the conditions of the sentence, [3]

place the offender at risk to reoffend, or [4] present

a risk to victim safety or community safety. The

department’s authority under this section is indepen-

dent of any court-ordered condition of sentence or

statutory provision regarding conditions for commu-

nity custody or community placement . . . .

Id. § 9.94A.728(2)(d) (emphasis added).

In order to comply with the statute, the DOC promulgated

Policy Directive 350.200. Under the version of this policy in

force when Carver submitted his release plan, the DOC

instructed that release plans of sex offenders be assessed to

determine “the degree of risk for victims and potential victims

of similar age or circumstances” and to ensure that, subject to

certain exceptions, “[s]ex offenders will not return to a resi-

dence where minor victim(s) or other children of similar age

are present in the residence.” DOC Policy Directive 350.200

(May 4, 2001). This Policy Directive specified that a resi-

dence proposed by an offender within a release plan could be

denied if the proposed location would place the offender in

violation of court-imposed conditions; at the likely risk to re-

offend; or in close proximity to the minor victim(s), schools,

child care centers, playgrounds, or other facilities where chil-

dren of similar age and circumstances surrounding the convic-

CARVER v. LEHMAN 16653

tion are present and who may be put at substantial risk of

harm by the offender residing at that location.6 The DOC’s

policy also provided for the categorical denial of release plans

“if the End of Sentence Review Committee has determined

that the offender appears to meet the definition of a sexually

violent predator and s/he has been referred for Civil Commit-

ment . . . .”7 This final provision, under which Carver’s

release plan was denied, was subsequently eliminated after

the Washington Court of Appeals held that it violated the stat-

utory requirement that all sex offenders “may become eligi-

ble” for community custody. See Dutcher, 60 P.3d at 638-40.

Carver argues that this statutory scheme creates a protected

liberty interest because it requires the DOC to transfer an

inmate to community custody in lieu of earned release “unless

any one of the . . . specifically designated reasons are

6

The last criterion derives from section 72.09.340(3)(a), which provides

that the DOC is “authorized to reject a residence location if the proposed

residence is within close proximity to schools, child care centers, play-

grounds, or other grounds or facilities where children of similar age or cir-

cumstance as a previous victim are present who the department determines

may be put at substantial risk of harm by the sex offender’s residence at

that location.” WASH. REV. CODE § 72.09.340(3)(a) (2006).

7

Washington law defines “sexually violent predator” as “any person

who has been convicted of or charged with a crime of sexual violence and

who suffers from a mental abnormality or personality disorder which

makes the person likely to engage in predatory acts of sexual violence if

not confined in a secure facility.” WASH. REV. CODE § 71.09.020(16)

(2006). An offender determined to be a sexually violent predator may be

subject to civil commitment after his term of confinement. WASH. REV.

CODE § 71.09.010 (2006). Carver’s criminal record and poor behavior

while incarcerated provide sufficient basis on which the DOC could rea-

sonably determine that Carver appeared to meet the definition of a sexu-

ally violent predator and that it would be appropriate to refer him to be

civilly committed for further custodial treatment after he completed his

criminal sentence. The legislature of the State of Washington has enacted

a civil commitment custodial treatment program run by the Department of

Social & Health Services in which dangerous sexual predators may be

safely held while efforts are made to treat their condition. See WASH. REV.

CODE § 71.09.010.

16654 CARVER v. LEHMAN

found[,]” thereby “creat[ing] a presumption that . . . release

[into community custody] will be granted, and that this in turn

creates a legitimate expectation of release absent the requisite

finding that one of the justifications for [denial] exists.”

Greenholtz, 442 U.S. at 11-12; see also Allen, 482 U.S. at

377-78. We disagree. [4] In order to create a constitutionally

protected liberty interest, a statute must contain “ ‘explicitly

mandatory language,’ i.e., specific directives to the decision-

maker that if the regulations’ substantive predicates are pres-

ent, a particular outcome must follow.” Thompson, 490 U.S.

at 463 (quoting Hewitt v. Helms, 459 U.S. 460, 472 (1983)).

There is no “explicitly mandatory language” in section

9.94A.728(2) creating a substantive right to transfer to com-

munity custody. The statute, using classically permissive lan-

guage, states that a “person convicted of a sex offense . . .

may become eligible, in accordance with a program devel-

oped by the department, for transfer to community custody

status in lieu of earned release time.” WASH. REV. CODE

§ 9.94A.728(2)(a). The only “explicitly mandatory language”

in section 9.94A.728(2) concerns a procedural right to an

individualized determination based on the merits of a pro-

posed release plan.8 That language cannot create a “liberty

interest” within the meaning of the Fourteenth Amendment

because “expectation of receiving process is not, without

more, a liberty interest protected by the Due Process Clause”

8

Subsection (2)(c) reads: “The department shall, as a part of its program

for release to the community in lieu of earned release, require the offender

to propose a release plan that includes an approved residence and living

arrangement.” As the Washington Court of Appeals in In re Dutcher held,

this language, combined with language in subsection (2)(d), mandates that

the DOC make an individualized determination “based on the merits of a

release plan.” 60 P.3d at 638. The DOC’s failure to provide such an evalu-

ation rendered unlawful its further detention of sex offenders without an

individualized determination, a statutory wrong for which the Washington

Rules of Appellate Procedure provide relief. See Wash. R. App. P. 16.4(a),

(c)(2) (providing that “the appellate court will grant appropriate relief to

a petitioner if . . . the petitioner’s restraint is unlawful.”). Thus, Dutcher

stands for the proposition that release plans may not be categorically

denied. It does not require that release plans be categorically approved.

CARVER v. LEHMAN 16655

of the Fourteenth Amendment. Olim v. Wakinekona, 461 U.S.

238, 250-51 n.12 (1983); see also In re Cashaw, 866 P.2d 8,

12 (Wash. 1994) (“The United States Supreme Court and the

Ninth Circuit have clearly held that procedural laws do not

create liberty interests; only substantive laws can create these

interests.”).9

[5] Pursuant to that procedural mandate, the DOC has no

“discretion to decide whether or when to consider an offender

for transfer to community custody,” In re Liptrap, 60 P.3d

1227, 1232 (Wash. Ct. App. 2005) (emphasis added). But

Washington law places no substantive limitation on how the

DOC is to make that determination. As noted above, section

9.94A.728(2)(d) enumerates four criteria for evaluating the

transfer plan. The statute instructs that the DOC “may deny

transfer to community custody if” one or more of those

criteria are met. Id. (emphasis added). Far from setting forth

“substantive predicates” under which the DOC must grant

transfer, the statute is silent regarding even precatory criteria

for granting transfer to community custody, specifying only

when the DOC “may”—but need not10 — “deny.”

No particular words are necessary to create a liberty interest.11

If the section 9.94A.728(2)(d) criteria for denying transfer

constituted an exhaustive list of reasons for denial, the lan-

guage would be effectively mandatory, giving rise to a pre-

9

Cashaw, like Dutcher, instead grounded the inmate’s right to challenge

his restraint because of procedural error in Washington Rule of Appellate

Procedure 16.4. Id. at 13-14.

10

Section 72.09.340(3) contains two narrower circumstances under

which “the department shall not approve a residence location”: if the pro-

posed residence includes a minor child who might be put at risk, or if it

is close in proximity to the current residence of the prisoner’s minor vic-

tim.

11

In Allen, the Supreme Court “reject[ed] the argument that a statute that

mandates release ‘unless’ certain findings are made is different from a

statute that mandates release ‘if,’ ‘when,’ or ‘subject to’ such findings

being made.” 482 U.S. 369, 378 (1987).

16656 CARVER v. LEHMAN

sumption of transfer. Nothing in the statute, however,

indicates that those four criteria are the sole reasons for which

the DOC may deny transfer.12 To the contrary: immediately

following the enumeration, the statute goes on to state that the

DOC’s “authority under this section is independent of any

court-ordered condition of sentence or statutory provision

regarding conditions for community custody or community

placement.” WASH. REV. CODE § 9.94A.728(2)(d). The stat-

ute’s manifest purpose, therefore, is to preserve to the DOC

the discretion to deny transfer in the event that it makes one

of the four determinations, notwithstanding what other legal

sources might otherwise require.

To convert this non obstante permissive clause, meant to

preserve discretion in certain cases, into an expressio unius

provision that would limit discretion to all but those cases

would be to invert the very purpose for which this statute was

drafted.13 These statutes were enacted to protect the commu-

12

If, for example, the statute stated that DOC “may” deny transfer “only

if” certain criteria are met or “unless” they are not, that might sufficiently

limit the discretion of the DOC to the point it creates an expectation of

release. The distinction between “if” and “only if,” however, is not a mere

quibble over vocabulary—it goes right to the heart of whether the criteria

of section 9.94A.728(2)(d) are necessary or sufficient conditions for trans-

fer, and therefore whether transfer is mandatory or entirely discretionary.

“May . . . only if” would be effectively identical to “shall . . . unless”;

“may . . . if” is not.

13

The canon of construction expressio unius est exclusio alterius stands

for the proposition that, when the legislature provides a list of related

items, it impliedly means to exclude other items not listed. See Norman

J. Singer, 2A Sutherland Statutes and Statutory Construction § 47:23 (7th

ed. 2007). Such a result will obtain, however, only in the absence of evi-

dence to the contrary. “The maxim expressio unius est exclusio alterius is

an aid to construction, not a rule of law. It can never override clear and

contrary evidences of [legislative] intent.” Neuberger v. Comm’r, 311 U.S.

83, 88 (1940); see also Wash. State Labor Council v. Reed, 65 P.3d 1203,

1209 (Wash. 2003) (“[T]he rule of expressio unius est exclusio alterius

d[oes] not necessarily apply without considering other factors which may

persuade the court that legislative intent was the opposite of what the stat-

utory construction rule would require.”). In this case, the statement that

sex offenders only “may” receive transfer, combined with the final sen-

tence of the paragraph, make clear the permissive intent of the statute.

CARVER v. LEHMAN 16657

nity from recidivist offenders whose proclivity to sexually

abuse children is well-documented and whose anti-social ten-

dencies are notoriously difficult to remedy through traditional

penological methods. Carver’s record would cause any rea-

sonably cautious state official to pause before authorizing

even closely supervised release to the community. On the

basis of his prior record alone—even before this latest

conviction—a Washington superior court found probable

cause that Carver was a sexually violent predator. A forensic

psychological examination had concluded that Carver was, in

his own words, “a civil commitment case”—that is, he was

found to meet the criteria of a sexually violent predator. Sec-

tion 9.94A.728(2)(d) reserves discretion for DOC officials

precisely so they may deny release plans of prisoners like

Carver who remain threats to the community.

[6] Our reading of section 9.94A.728(2)(d) is consistent

with the case law of the Washington state courts construing

it.14 In the text of In re Liptrap, the Washington Court of

Appeals noted that the statute “stat[es] reasons why the

department may deny a release plan,” 111 P.3d at 1232, but

kept those “reasons” in the indefinite: they are just “reasons”

—not the reasons, let alone the only reasons—for denial. Sim-

ilarly, In re Dutcher held simply that “the statute . . . requires

DOC to base its community custody eligibility decisions on

the merits of the release plan,” 60 P.3d at 638, which is hardly

to imply that section 9.94A.728(2)(d) provides the sole rubric

by which those “merits” are to be evaluated.

[7] It is true that the cases cited above refer to a “limited

liberty interest” held by prisoners in transfer to community

custody. Liptrap, 111 P.3d at 1231; see also Dutcher, 60 P.3d

at 636 (describing a “limited but protected liberty interest” in

14

“Whether a state statute provides such a protectable entitlement

depends on the structure and language of the statute, as well as the state

courts’ interpretation of the scope of the interest.” Bergen v. Spaulding,

881 F.2d 719, 721 (9th Cir.1989) (emphasis added).

16658 CARVER v. LEHMAN

transfer); Crowder, 985 P.2d at 945 (“The statutory right to

earned early release creates a limited liberty interest requiring

minimal due process.”). We must not be confused, however,

by those decisions’ use of a Fourteenth Amendment term of

art: those cases concerned only the procedural right to com-

pliance with individualized consideration on the merits of

prisoners’ release plans, secured by Washington Rule of

Appellate Procedure 16.4(a). Liptrap, 111 P.3d at 1234; Dut-

cher, 60 P.3d at 638. To the extent they contain dicta using

the same term, “liberty interest,” to refer to both a substantive

right to transfer and a procedural right to consideration on the

merits, the most logical reading is that both derive from

Washington law, and are hence of the same sub-constitutional

nature. Regardless, those dicta provide no justification for dis-

regarding the plain language of the statute.

Washington appellate courts have been careful to distin-

guish between the state habeas relief available through per-

sonal restraint petitions for violations of state law, and

personal restraint petitions to redress violations of a constitu-

tional magnitude. The decisions in Dutcher, Crowder, and

Cashaw are examples of the former. In Cashaw, the Washing-

ton State Supreme Court explicitly rejected the lower court’s

holding that the Indeterminate Sentence Review Board’s fail-

ure to follow mandatory parole procedures constituted an

infringement of Fourteenth Amendment Rights. 866 P.2d at

12. Though it concluded that “the Board had violated its own

procedural rules for parolability hearings,” it specifically held

it was error to conclude “this violation was of constitutional

magnitude.” Id. at 13. The cases that refer to a “limited liberty

interest” do not support Judge Reinhardt’s conclusion that

state law regarding community custody creates a liberty inter-

est arising under the Constitution.

Washington courts have implied only one limit on the sub-

stance of the DOC’s exercise of discretion: its reasons for

denial must be “legitimate.” Liptrap, 111 P.3d at 1234; Crow-

der, 985 P.2d at 946. But there is no indication that a reason

CARVER v. LEHMAN 16659

may acquire “legitimacy” only by its enumeration in section

9.94A.728(2)(d). Indeed, every indication is to the contrary:

In re Crowder, the first case to imply a requirement of “legiti-

mate reasons” for denial of transfer to community custody,

specified the petitioner’s “own withdrawal of a suggested

placement plan” as one of the “legitimate reasons” for deny-

ing him transfer, 985 P.2d at 946—a reason which certainly

seems legitimate, but appears nowhere in section

9.94A.728(2)(d).15 No Washington case has provided a gen-

eral definition for what makes a reason “legitimate,” which

could be as broad as “any reason having a rational basis,” or

even “any reason not otherwise proscribed by law.” This ill-

defined “right” to transfer only in the absence of some “legiti-

mate” reason to deny is hardly a sufficient “substantive predi-

cate” to produce the “legitimate expectation of release”

required of a protected liberty interest under Greenholtz. 442

U.S. at 12.

[8] The analysis employed by the Washington courts in

parole and community release cases confirms our conclusion

that section 9.94A.728(2)(d) does not create a liberty interest.

DOC officials had legitimate concern that Carver, based on

his multiple sex convictions and behavior in prison, had not

presented an acceptable release plan to alleviate the concern

for public safety. The Constitution requires no more.

Response to Preamble of Concurrence

We readily acknowledge the self-evident truth of Judge

Reinhardt’s observation that in our judicial system the out-

come of important appellate cases can vary based on the com-

position of the judicial body or panel deciding those cases. It

has been so ever since the founding of the Republic, and will

15

In re Crowder predated the enactment of section 9.94A.728(2)(d) by

three years. There is no indication in subsequent case law, however, that

codification of certain reasons in section 9.94A.728(2)(d) has somehow

narrowed the range of “legitimacy.”

16660 CARVER v. LEHMAN

inevitably be so in the future so long as we are judged by

human beings. We respectfully disagree, however, with much

of the balance of our concurring friend’s preambular observa-

tions about this case, and we feel it appropriate to respond.

We observe first that our concurring colleague saddled his

point to a rather weak horse. Releasing a potentially danger-

ous child molester who may readily reoffend does not fit well

within his critical matrix for determining protectable liberty

interests, and certainly does not reach any “matters as basic

as affirmative action, a woman’s right of choice, and the

nature of religious liberty.” Concurrence at 16667.

Our colleague states that the “Constitution did not change

between the time of the original panel’s decision and the time

of the new majority’s opinion. All that changed is the compo-

sition of the three-judge panel.” Concurrence at 16667. This

implies that the previous panel majority unearthed an unal-

loyed constitutional nugget waiting to be discovered within

the primordial crust of the Fourteenth Amendment, but which

must now be reinterred and disregarded as a result of the pass-

ing of one of our colleagues. This implication ignores Judge

Reinhardt’s candid admission that “[t]he constitutional ques-

tion is a close one, and substantial arguments can be made for

either position.” Concurrence at 16667. It further disregards

both the rules of our court and the vicissitudes of life.

The respective corpora of the opinion and concurrence in

this case discuss the disputed nature of the constitutional

question. But whatever the merits of each side’s constitutional

analysis, we respectfully disagree with Judge Reinhardt’s con-

tention that the prior majority’s opinion actually became a

binding construction of the Constitution before Judge Fergu-

son’s death. No opinion of this circuit becomes final until the

mandate issues, and the opinion issued by the prior majority

was only part way through its finalization process.16 Just as

16

United States v. Ruiz, 935 F.2d 1033 (9th Cir. 1991) clarifies that “no

expectation of finality can attach during the period in which either party

CARVER v. LEHMAN 16661

judges occasionally change their minds post-conference, or

during the exchange of draft opinions, the insertion of a new

colleague can change a panel’s perspective on an issue. We

note also that until the mandate has issued, opinions can be,

and regularly are, amended or withdrawn, either at the request

of the parties pursuant to a petition for panel rehearing, or sua

sponte by the panel itself. For example, in the ninety days

between July 11, 2008, and October 9, 2008, at least ten pub-

lished opinions were withdrawn17 and at least ten opinions

were amended18 in our circuit. Thus, the prior majority’s hold-

may petition for rehearing.” Id. at 1037 (quoting United States v. Fourmai,

910 F.2d 617, 620 (9th Cir. 1990)). Thus, until the mandate issues, an

opinion is not fixed as “settled Ninth Circuit law,” and reliance on the

opinion is a “gamble.” Id. Moreover, in recognition of the human condi-

tion, our rules provide that “[i]f a member of a three-judge panel becomes

unavailable by reason of death, disability, or departure from the court and

the case is under submission, the Clerk shall draw a replacement by lot.”

Ninth Circuit General Orders 3.2g.

17

Granados-Oseguera v. Mukasey, No. 03-73030, 2008 WL 4478019

(9th Cir. Oct. 07, 2008); Al-Mousa v. Mukasey, No. 06-70638, 2008 WL

4330339 (9th Cir. Sept. 22, 2008); U.S. v. Gianelli, No. 07-10233, 2008

WL 4225460, (9th Cir. Sept. 17, 2008); Nguyen v. Mukasey, No. 04-

75315, 2008 WL 4180007 (9th Cir. Sept. 11, 2008); Amin v. Mukasey, No.

04-74693, 2008 WL 4148531 (9th Cir. Sept. 04, 2008); Carver v. Lehman,

540 F.3d 1011 (9th Cir. 2008); Center for Biological Diversity v. National

Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008); U.S. v.

Marcos-Mora, No. 07-30171, 2008 WL 3890415 (9th Cir. Aug. 15, 2008);

Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116 (9th Cir.

2008); Metzler Inv. GmbH v. Corinthian Colleges, Inc., 534 F.3d 1068

(9th Cir. 2008).

18

Center for Public Analysis on Trade and Health v. Office of U.S.

Trade Representative, No. 06-16682, 2008 WL 4490366 (9th Cir. Oct. 08,

2008); Lopez-Gutierrez v. Mukasey, No. 06-75836, 2008 WL 4472973

(9th Cir. Oct. 06, 2008); Hernandez v. Lamarque, No. 07-15921, 2008 WL

4430670 (9th Cir. Oct. 01, 2008); U.S. v. Grubbs, No. 03-10311, 2008 WL

4279988 (9th Cir. Sept. 17, 2008); Metzler Inv. GMBH v. Corinthian Col-

leges, Inc., 540 F.3d 1049 (9th Cir. 2008); Bull v. City and County of San

Francisco, 539 F.3d 1193 (9th Cir. 2008); Marceau v. Blackfeet Housing

Authority, 540 F.3d 916 (9th Cir. 2008); Walter v. Drayson, 538 F.3d 1244

(9th Cir. 2008); Smith v. County of Riverside, No. 06-56848, 2008 WL

2872623, (9th Cir. July 24, 2008); U.S. v. Lopez, 2008 WL 2745948, No.

07-35389, (9th Cir. July 16, 2008).

16662 CARVER v. LEHMAN

ing in this case may or may not have survived until the man-

date issued, but it was certainly not yet enshrined as a binding

construction of the Constitution when Judge Ferguson died.

Our concurring friend also suggests that the only proper

way to correct an opinion that was in error ab initio is through

the en banc process. This suggestion ignores the rules and

facts just cited, and also disregards the fact that an opinion,

like the one in this case, may not involve issues of a nature

required to merit a rehearing en banc under our rules (e.g.

direct conflict with a published, binding opinion, or a “ques-

tion of exceptional importance,” Fed. R. App. P. 35(a)), and

yet may still be flawed and wanting correction.

We readily agree that only published opinions of the court

are precedential, and that no court is bound by unpublished

dispositions except when they are “relevant under the doctrine

of law of the case or rules of claim preclusion or issue preclu-

sion.” Ninth Circuit Rule 36-3(a). Unpublished dispositions

can also be properly cited in our court, whatever their value,

when they were issued on or after January 1, 2007, Fed. R.

App. P. 32.1(a), and nothing in our rules prohibits our own

judges from considering or referring to unpublished disposi-

tions issued at any point in time, and even relying on them so

long as they do not conflict with binding precedential deci-

sions. Even pre-January 1, 2007, unpublished opinions can be

cited and considered, for example, in the context of determin-

ing whether the law was established in the context of qualified

immunity, Prison Legal News v. Lehman, 397 F.3d 692, 701-

02 (9th Cir. 2005) (“[i]n determining whether [plaintiff’s]

rights in this case were clearly established . . . we may look

at unpublished decisions”); Bahrampour v. Lampert, 356 F.3d

969, 977 (9th Cir. 2004) (unpublished opinions, “despite their

lack of binding precedential effect . . . can be considered in

determining whether the law was clearly established” for pur-

poses of qualified immunity); Sorrels v. McKee, 290 F 3d

965, 971 (9th Cir. 2002) (unpublished district court opinions

CARVER v. LEHMAN 16663

“[a]t most . . . show that the law was in the process of becom-

ing established”).

Nevertheless, we are only to write opinions for publication

when they meet the requirements of Circuit Rule 36-2.19 It is

also clear, under Circuit Rule 36-2, that when a disposition

relies upon what a panel considers to be well-understood, pre-

existing law, and it takes no other action contemplated by Cir-

cuit Rule 36-2, it should issue an unpublished disposition or

order, not a published opinion.

The facts of this case are illustrative of the points dis-

cussed. The case was docketed on March 2, 2006. On March

22, 2007, Defendant-Appellant Carver sent a 28(j) letter to

our panel identifying Chaney v. Lehman, 225 Fed. Appx. 708

(9th Cir. March 22, 2007) as pertinent authority. Although

Plaintiff-Appellee sent his own 28(j) letter on April 6, 2007

19

Ninth Circuit Rule 36-2 reads:

A written, reasoned disposition shall be designated as an OPIN-

ION only if it:

(a) Establishes, alters, modifies or clarifies a rule of law, or

(b) Calls attention to a rule of law which appears to have

been generally overlooked, or

(c) Criticizes existing law, or

(d) Involves a legal or factual issue of unique interest or sub-

stantial public importance, or

(e) Is a disposition of a case in which there is a published

opinion by a lower court or administrative agency, unless the

panel determines that publication is unnecessary for clarifying the

panel’s disposition of the case, or

(f) Is a disposition of a case following a reversal or remand

by the United States Supreme Court, or

(g) Is accompanied by a separate concurring or dissenting

expression, and the author of such separate expression requests

publication of the disposition of the Court and the separate

expression.

16664 CARVER v. LEHMAN

arguing that Chaney was not precedential because it was not

designated “for publication,” he then proceeded to address

and attempt to refute the merits of Defendant-Appellant’s

position regarding the import of Chaney. In deciding that

class plaintiffs in Chaney had not established that they held a

Fourteenth Amendment liberty interest to be released into

community custody on the first eligible release time date, the

panel majority in Chaney cited Greenholtz v. Inmates of

Nebraska Penal and Correctional Complex, 442 U.S. 1

(1979); In re Taylor, 95 P.3d 790, 792 (2004); In re Crowder,

97 Wash.App. 598, 985 P.2d 944, 946 (1999); In re Dutcher,

60 P.3d 635, 640 (2002); In re Liptrap, 111 P.3d 1227, 1234

(2005), some of which are also cited by us and Judge Rein-

hardt.

Although Chaney was only an unpublished disposition,

Judge Berzon wrote a vigorous dissent, making some of the

same arguments now made by Judge Reinhardt. Interestingly,

Judge Berzon did not require that the disposition in Chaney

be published, as was her right under Circuit Rule 36-2(g).

The previous panel in this case heard oral argument on

April 17, 2007, having been notified by the parties of the doc-

trinal relevance of Chaney. Knowing that before the mandate

issues, a panel may decide to publish its previously unpub-

lished opinion, grant a motion for panel rehearing, or that the

court may grant a motion for rehearing en banc, the previous

panel promptly issued an order stating “Submission of this

case is vacated pending issuance of the mandate in Chaney v.

Lehman, No. 05-36116.” Had Chaney been published, the

opinion filed by the original panel in this case would have

been foreclosed because the constitutional issue would have

been decided in the same way as we now decide it, and, more-

over, as indicated in its order, the previous majority properly

took this fact into consideration. The Chaney panel ultimately

chose not to publish its opinion (perhaps because it felt that

the law was well enough understood in Washington State that

it was unnecessary to do so), and so the previous panel major-

CARVER v. LEHMAN 16665

ity filed its opinion on June 9, 2008, some time after the man-

date issued in Chaney. In addition to the Chaney panel, one

other panel of our court, and two district judges had also con-

sidered the constitutional issue addressed in this case, and

each had reached the same conclusion that we do here. See

Dutcher v. Lehman, No. 06-35043, 234 Fed. App’x 631 (9th

Cir. 2007); Duncan v. Lehman, No. C04-5633RBL, 2006 WL

1548820 (W.D. Wash. June 2, 2006); Garcia v. Lehman, No.

C04-5893FDB, 2006 WL 827957 (W.D. Wash. Mar. 23,

2006). Two weeks after the majority opinion was filed in this

case, on June 23, 2008, Defendants-Appellants filed a Petition

for Rehearing En Banc and Plaintiff-Appellee filed a Petition

for Panel Rehearing. Judge Ferguson died two days later, on

June 25, 2008, with the petitions for rehearing from all parties

pending, and the mandate in the case unissued. Pursuant to

General Order 3.2g, the Clerk of the Court drew Judge Tall-

man as a replacement for Judge Ferguson on the panel, and

an order to that effect was filed on July 25, 2008. On August

26, 2008, an order was filed withdrawing the opinion filed on

June 9, 2008, and denying Plaintiff-Appellant’s Petition for

Rehearing and Defendants-Appellants’ Petition for Rehearing

En Banc as moot, since the new panel had voted to amend the

previous opinion.

[9] By any measure, the prior majority’s opinion purported

to establish a new constitutional rule of law, because until its

issuance, no federal or state court had found that Washington

law created a liberty interest protected by the Fourteenth

Amendment mandating that a dangerous sex offender be

released into community custody on the first eligible release

time date. The fact that prior rulings were not precedential,

and thus did not bind other courts, does not change the fact

that they still applied the law as then understood. Indeed, we

suspect that the vast majority of federal and state statutes have

never been construed by courts, and yet they still have the

force of law, and are applied and construed by those governed

by them unless and until a higher court changes or confirms

the prior understanding of the law in a precedential opinion.

16666 CARVER v. LEHMAN

Thus, in that sense, the prior majority’s opinion purported to

change existing law, and it is this amended opinion that

restores the law to the status quo ante, albeit in a precedential

decision that does bind other courts.

Conclusion

[10] Because Washington law does not create a liberty

interest in transfer to community custody, we need not

address the sufficiency of the procedures given (or denied)

Carver. The judgment of the district court is AFFIRMED.

Each party shall bear its own costs on appeal.

REINHARDT, Circuit Judge, concurring in the judgment

only:

Six months ago, the original panel in this case filed a

majority opinion holding that Washington state law creates a

liberty interest in an inmate’s early release into community

custody. We held that the prisoner’s liberty interest is pro-

tected under the Due Process Clause of the Fourteenth

Amendment and that, accordingly, when an inmate becomes

eligible for a transfer to community custody, the prison

authorities may deny his request for a transfer only for one of

the reasons specified in the Washington statute — and only if

he is afforded a minimal opportunity to present his side of the

story before they do so. In short, we held that Washington

prison authorities must follow Washington law and abide by

the United States Constitution. Joining me in that opinion was

Judge Warren J. Ferguson, who died before we could deny the

petition for rehearing; dissenting was Judge Milan Smith. As

a result of Judge Ferguson’s death, it was necessary to replace

him on this case with another member of this court drawn at

random. There were no intervening decisions that changed the

law between the time Judge Ferguson and I issued our opinion

CARVER v. LEHMAN 16667

holding that a liberty interest exists that protects the prisoners’

rights at issue and the time that Judge Smith, joined by our

colleague who replaced Judge Ferguson, issued a substitute

opinion holding that no such liberty interest exists.

As stated above, it is indisputable that the law did not

change and the Constitution did not change between the time

of the original panel’s decision and the time of the new major-

ity’s opinion. All that changed is the composition of the three-

judge panel. To those who question whether the results in

constitutional and other cases depend on the membership of

the panel, or whether the replacement of even a single

Supreme Court justice can change the fundamental nature of

the rights of all Americans with respect to matters as basic as

affirmative action, a woman’s right of choice, and the nature

of religious liberty, the result in the case currently before our

panel is merely a minor illustration of how the judicial system

currently operates. Solely because of fortuity, I am compelled

to write in strong disagreement with the majority’s constitu-

tional analysis instead of simply reaffirming an opinion vindi-

cating the constitutional rights of the petitioner and his fellow

prisoners in the state of Washington.

In the case before us, it is not necessary for the new major-

ity to undo the original majority’s constitutional ruling, even

if it disagrees with it. The constitutional question is a close

one, and substantial arguments can be made for either posi-

tion. Under these circumstances, the more important consider-

ation, in my view, is maintaining the stability and legitimacy

of the court’s decisions. We have a procedure for correcting

decisions that a majority of the court believes warrant recon-

sideration. That process is known as a en banc rehearing. It

can be invoked if any single judge on the court, including

either member of the majority, elects to make a call. Relying

on this process would, in my view, be in the better interests

of the court and the judicial system; increasing the extent to

16668 CARVER v. LEHMAN

which judicial decisions depend on chance and subjectivity is

not a wise alternative.1

Unfortunately, my colleagues, having read the above,

including the footnote, have decided that it is necessary to

respond to this rather uncontroversial part of my concurrence.

They do so in a manner that misperceives the purpose and

content of the three brief paragraphs.

It is true as Judge Smith points out that I chose to make my

observations in a case that does not involve a “matter[ ] as

basic as affirmative action, a woman’s right of choice, and the

nature of religious liberty.” Maj. Op. at 16660 (quoting Con-

currence at 16667). My choice was deliberate. It was made in

part to show that judicial determinations of the law are subject

to such vicissitudes not only in high-visibility cases but in

cases involving all types of questions. I also chose the case

before us so that our collegial discussion of how courts decide

what the law shall be would be removed from the heat of

emotional issues that sometimes cause judges to lose their

objectivity. To me, for these reasons this appeared to be the

right case to engage in such a discussion, rather than, as my

colleagues believe, an inappropriate one. I can assure them,

however, that I will shortly point to an example of the way

our law is shaped by the replacement of one panel member by

another in a far more controversial case. As to the present

case, I remind my colleagues that we are not considering

releasing Carver here; he has already been released and is

simply suing for damages, which would be denied under my

1

I am aware that two non-precedential memorandum dispositions of this

court have previously stated, in a cursory fashion, and without analysis,

that the Washington statute does not create a liberty interest. Footnote 15

of the original majority opinion provides a full analysis of those decisions

and shows clearly that the outcomes were not determined by the composi-

tion of the panel but by the form and nature of the disposition. Surely, had

the members of those panels thought that they were resolving a serious

constitutional question they would not have done so in a non-precedential

memorandum disposition.

CARVER v. LEHMAN 16669

theory of the case as well as theirs. For my colleagues’ bene-

fit, I should also state that I, of course, do not believe that I

have unearthed a “constitutional nugget,” Maj. Op. at 16660,

alloyed or otherwise. This is simply a case in which Judge

Ferguson and I tried our best to do our job, including the

mundane task of seeing that prisoners, like all other persons,

are afforded the rights to which they are entitled under the

law. I recognize that these days there are many who do not

share the view that prisoners’ rights deserve judicial protec-

tion, but neither Judge Ferguson nor I was aware of any con-

stitutional or statutory provision to that effect, except perhaps

for the Antiterrorism and Effective Death Penalty Act, 28

U.S.C. §§ 2241 et seq.

Let me also make it clear that I have not suggested, nor do

I believe, that Judge Smith and Judge Tallman do not have the

authority to withdraw the opinion filed by the initial panel and

published as the opinion of the court. Of course, they do. Nor

have I suggested that the opinion was “final”: I merely stated

what I strongly believe — that it is unwise for a court, once

it has published an opinion on a constitutional question, to

change its mind for so fortuitous and subjective a reason.

Rather, I suggested that a procedure exists under which we

could reach a different result through a more objective pro-

cess in which the merits, not the composition of the panel,

would provide the basis for our action. I stated simply that

proceeding in the latter manner would help to secure the legit-

imacy of court decisions and, necessarily, to maintain public

confidence in the judicial system.

As to the majority’s lengthy disquisition on memorandum

dispositions and published opinions, it should not be neces-

sary for me to restate the obvious: The law is established in

published opinions and published opinions only. The Chaney

panel, which declined to publish an opinion, was well aware

that the initial Carver panel was awaiting its decision and that

we would abide by its opinion if it chose to issue one. It

decided not to do so, thereby rejecting the opportunity to

16670 CARVER v. LEHMAN

define the applicable law for the circuit. To say as the major-

ity now does, that despite the absence of a single circuit opin-

ion on an issue that has been presented to the court a number

of times, there was “existing law” that Judge Ferguson and I

“changed,” and that Judge Smith and Judge Tallman, by now

reaching the diametrically opposite result are merely restoring

our circuit law to the “status quo ante” is more than mind-

boggling. If we were to accept this view, the law in this circuit

would no longer be declared in opinions; “existing” circuit

law could be found in whatever sources suited anyone’s whim

or fancy, including the Sewanee Law Review. What an odd

legal system we would be adopting for the Ninth Circuit —

one that would be operative in this court only. Surely my col-

leagues cannot mean what their opinion states. Say it ain’t so,

my friends.2

I. Liberty Interest

As Judge Ferguson and I previously held, Washington’s

statutory scheme creates a protected liberty interest because it

requires the Department of Corrections (“DOC”) to transfer

an inmate to community custody in lieu of earned release “un-

less any one of the . . . specifically designated reasons are

found[,]” thereby “creat[ing] a presumption that . . . release

[into community custody] will be granted, and . . . in turn

creat[ing] a legitimate expectation of release absent the requi-

site finding that one of the justifications for [denial] exists.”

Greenholtz v. Inmates of the Nebraska Penal and Corr. Com-

plex, 442 U.S. 1, 11-12 (1979). See also Bd. of Pardons v.

Allen, 482 U.S. 369, 377-78 (1987). The majority rejects this

argument, finding no “ ‘explicitly mandatory language’ . . .

creating a substantive right to transfer to community custody”

under Washington law. Maj. Op. at 16654 (emphasis omit-

2

I would remind my colleagues that they are not simply seeking to make

debaters’ points here. Theirs is a majority opinion. They are therefore

establishing the law for the circuit, including the law with regard to what

constitutes controlling law.

CARVER v. LEHMAN 16671

ted). For the reasons set forth in our prior majority opinion

and reiterated below, I believe that the current majority’s

reading is flawed.

The Washington statutory scheme uses language that effec-

tively mandates the transfer to community custody of those

inmates who have earned release time and who have not been

found to meet one of the statutory reasons for denial of a

release plan set forth in Washington Revised Code

§ 9.94A.728(2)(d). Section 9.94A.710(1) requires that sex

offenders be sentenced to a term of community custody to

begin either when the offender’s term of confinement is com-

plete or when he is transferred as a result of earned release

time. Section 9.94A.728(1) likewise requires the DOC to

develop and promulgate procedures by which a sex offender

may become eligible for transfer to community custody in

lieu of earned release time. The same section then sets forth

the limited circumstances under which the Department “may

deny” an inmate’s proposed plan for transfer to community

custody. WASH. REV. CODE § 9.94A.728(2)(d) (listing as legit-

imate reasons for denial, a DOC determination that the release

plan may violate the conditions of the sentence or conditions

of supervision, place the offender at risk to violate the condi-

tions of the sentence, place the offender at risk to reoffend, or

present a risk to victim or community safety). By placing sub-

stantive limitations on DOC’s discretion to deny release plans

and, in particular, by requiring that denial of such plans be

based on the limited criteria contained in section

9.94A.728(2)(d), Washington has created a liberty interest in

early release into community custody that is protected by the

Due Process Clause of the Fourteenth Amendment.3 See

3

At oral argument, Lehman urged that the presence of more specific

criteria for denial of proposed residence locations in section

72.09.340(3)(a) undermines Carver’s contention that the four criteria listed

in section 9.94A.728(2)(d) provide the exclusive legitimate bases for

denial of a release plan. Lehman is incorrect: the bases for denial of pro-

posed residence locations contained in section 72.09.340(3)(a) are, in

16672 CARVER v. LEHMAN

Allen, 482 U.S. at 375-76 (clarifying that a state may grant

“significant discretion to the decisionmaker” to apply “gen-

eral or broad release criteria” without “depriv[ing] the pris-

oner of the liberty interest in parole[,]” so long as “release is

required after the [decisionmaker] determines (in its broad

discretion) that the necessary prerequisites exist”). See also

Baumann, 754 F.2d at 844 (noting that “[a] state may create

a constitutionally protected liberty interest by establishing

regulatory measures that impose substantive limitations on the

exercise of official discretion”); Bergen v. Spaulding, 881

F.2d 719, 721 (9th Cir. 1989) (“A board charged with decid-

ing a prisoner’s early release may be delegated significant dis-

cretion in making its decision, and yet be constrained by legal

effect, specific variations of the same more general formulations set forth

for denial of release plans in section 9.94A.728(2)(d). Section

72.09.340(3)(a) provides:

[T]he department shall not approve a residence location if the

proposed residence: (I) Includes a minor victim or child of simi-

lar age or circumstance (as a previous victim who the department

determines may be put at substantial risk of harm by the offend-

er’s residence in the household; or (ii) is within close proximity

of the current residence of a minor victim, unless the where-

abouts of the minor victim cannot be determined or unless such

a restriction would impede family reunification efforts ordered by

the court or directed by the department of social and health ser-

vices. The department is further authorized to reject a residence

location if the proposed residence is within close proximity to

schools, child care centers, playgrounds, or other grounds or

facilities where children of similar age or circumstance as a pre-

vious victim are present who the department determines may be

put at substantial risk of harm by the sex offender’s residence at

that location.

These bases for denial of a proposed residence, which take into account

whether the residence includes or is near a past or potential victim, are

simply more specific examples of the final two criteria that serve as legiti-

mate bases for denial under § 9.94A.728(2)(d), whether the “proposed res-

idence location and living arrangements . . . place the offender at risk to

reoffend, or present a risk to victim safety or community safety.” WASH.

REV. CODE § 72.09.340(3)(a).

CARVER v. LEHMAN 16673

standards in exercising that discretion . . . . that scheme may

give rise to a liberty interest in early release.”) (internal cita-

tion omitted).

That the Washington statute governing transfer to commu-

nity custody does not use the more traditional mandatory lan-

guage formula used in other early release statutes, i.e. stating

that the DOC “shall” grant release “unless” certain findings

are made, does not require a contrary result. See Allen, 482

U.S. at 378 (rejecting the argument that a statute must contain

the “shall/unless” formula in order to create a liberty interest).

Although we have accorded significance to the use of the term

“shall” in assessing whether early release statutes create a lib-

erty interest, we have never held that use of this term is

required in order to satisfy the mandatory language rule set

forth in Greenholtz and Allen. Nor does the majority so hold

today. Maj. Op. at 16654. Despite the absence of the word

“shall,” I conclude, as the prior majority did, that the language

of section 9.94A.728(2)(d) is mandatory. Section

9.94A.728(2)(d) provides that the department “may deny

transfer to community custody . . . if” any one of four criteria

is met. By establishing criteria under which release may be

denied, section 9.94A.728(2)(d) creates the presumption that,

absent the existence of one of those criteria, release will be

granted. The repetition of the criteria, albeit in more specific

form, in section 72.09.340(3)(a) and in Policy Directive

350.200 confirms this understanding of the mandatory nature

of the statute.

The “may deny . . . if” formula operates in precisely the

same manner and has precisely the same effect as a “shall

grant . . . unless” clause. Under the “may deny . . . if” for-

mula, the provision sets forth the conditions under which the

agency may deny release. Otherwise, it must grant it. This is

distinguishable from state statutes that provide that a decision-

maker “may grant . . . if” certain criteria are met. Under the

“may grant . . . if” formula, the agency may only grant release

16674 CARVER v. LEHMAN

if the relevant criteria are met, but it is not required to do so.4

Therefore, under the “may deny . . . if” formula, as under a

“shall grant . . . unless” clause, there is an expectation that

release will be granted unless one of the specified conditions

exists.

Judge Smith, who separately concurred in the original

majority opinion, remains unconvinced that the language of

the statutory scheme is mandatory. My colleague who

replaced Judge Ferguson agrees with him. But my reading is

supported by that of the Washington state courts. In interpret-

ing the statutory scheme governing early release into commu-

nity custody, the state Court of Appeals has on two occasions

discussed the mandatory nature of the law. First, in In re Dut-

cher, an inmate similarly situated to Carver challenged the

DOC’s failure to review his plan for release into community

custody pursuant to the Department’s policy of categorically

denying the plans of those offenders who appeared to be sexu-

ally violent predators and who were referred for civil commit-

ment. 60 P.3d 635, 635-36 (Wash. Ct. App. 2002). The court

held that the DOC’s policy violated the statutory mandate,

explaining that “the statute compels DOC to require offenders

to develop a release plan, and requires DOC to base its com-

4

For this reason, courts have routinely held that the “may grant . . . if”

formulation does not create a liberty interest. See, e.g., Barna v. Travis,

239 F.3d 169, 171 (2d Cir. 2001) (New York parole statute); Dace v.

Mickelson, 797 F.2d 574, 577 (8th Cir. 1986) (South Dakota parole stat-

ute); Gale v. Moore, 763 F.2d 341, 343 (8th Cir. 1985) (Missouri parole

statute); Parker v. Corrothers, 750 F.2d 653, 656-657 (8th Cir. 1984)

(Arkansas parole statute); Dock v. Latimer, 729 F.2d 1287, 1288 (10th Cir.

1984) (Utah parole statute); Irving v. Thigpen, 732 F.2d 1215, 1217 (5th

Cir. 1984) (Mississippi parole statute); Candelaria v. Griffin, 641 F.2d

868, 869-70 (10th Cir. 1981) (New Mexico parole statute); Williams v.

Briscoe, 641 F.2d 274, 276-77 (5th Cir. 1981) (Texas parole statute);

Schuemann v. Colo. State Bd. of Adult Parole, 624 F.2d 172, 174 n.2 (10th

Cir. 1980); Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979) (New

York parole statute); Shirley v. Chestnut, 603 F.2d 805, 806-07 (10th Cir.

1979) (Oklahoma parole statute); Wagner v. Gilligan, 609 F.2d 866, 867

(6th Cir. 1979) (Ohio parole statute).

CARVER v. LEHMAN 16675

munity custody eligibility decisions on the merits of the

release plan.” Id. at 638 (emphasis added).

Second, my conclusion that requiring a decision on the

merits of a release plan permits the Department to deny such

a plan only if it finds one of the statutory criteria listed in sec-

tion 9.94A.728(2)(d) is bolstered by the state court’s interpre-

tation of the statute in In re Liptrap. In Liptrap, inmates

challenged the DOC’s policy of refusing to review release

plans of sex offenders until a forensic psychological evalua-

tion had been completed. 111 P.3d 1227, 1229 (Wash. Ct.

App. 2005). In finding that the Department’s policy violated

inmates’ due process rights, the court explained that “[t]he

provisions in subsections [9.94A.728(2)] (c) and (d), spell[ ]

out what is required in a release plan and stat[e] reasons why

the department may deny a release[.]” Id. at 1232 (emphasis

added). Accordingly, the Liptrap court found that “the depart-

ment [does not have] unlimited discretion to decide whether

and when to consider an offender for transfer to community

custody.” Id. Rather, the DOC’s failure to “state[ ] a legiti-

mate reason” for the denial of a release plan, the court con-

cluded, “deprived [the inmates] of earned early release credits

in violation of due process.” Id. at 1234 (emphasis added).5

This holding is consistent with my conclusion that Washing-

ton law requires that the DOC’s denial of a release plan be

based on a “legitimate reason,” and that such reasons are enu-

merated in section 9.94A.728(2)(d).6

5

The Liptrap court specifically noted section 72.09.340’s provision for

denial of a release plan because the proposed residence is near young chil-

dren as a “legitimate statutory reason for disapproving a release plan for

a sex offender.” In re Liptrap, 111 P.3d at 1233 & n.6 (citing WASH. REV.

CODE § 72.09.340(3)). For the reasons set forth in footnote 3, supra, this

provision is simply a specific example of the more general bases for denial

set forth in section 9.94A.728(2)(d).

6

This provision goes on to state that “[t]he department’s authority under

this section is independent of any court-ordered condition of sentence or

statutory provision regarding conditions for community custody or com-

16676 CARVER v. LEHMAN

I conclude, then, as did the original panel majority, that the

language of the Washington statutory scheme, as supported

by Washington case law, mandates the transfer to community

custody of those inmates who have earned release time and

who have not been found to meet one of the statutory reasons

for denial of a release, thereby creating a constitutionally-

protected liberty interest in the transfer. This conclusion is

further supported by Washington state court decisions finding

a limited liberty interest in transfer to community custody in

lieu of early release. The Washington Court of Appeals has

consistently found a “limited liberty interest in early release

into a community custody program . . . .” In re Crowder, 985

P.2d 944, 944-45 (Wash. Ct. App. 1999) (holding inmate had

liberty interest in grant or denial of community custody place-

ment upon earning of early release, but that the minimum

level of due process required to protect this interest was pro-

vided). See also In re Dutcher, 60 P.3d at 636 (“An inmate’s

interest in his earned early release credits is a limited, but pro-

tected, liberty interest.”); In re Liptrap, 111 P.3d at 1231(same).7

munity placement.” Wash. Rev. Code § 9.94A.728(2)(d). The majority

argues that this sentence makes it clear that the function of section

9.94A.728(2)(d) is “to preserve to the DOC the discretion to deny transfer

in the event that it makes one of the four determinations, notwithstanding

what other legal sources might otherwise require.”

Maj. Op. at 16656. I do not disagree. The fact that the provision permits

the DOC to deny release even where other legal sources would allow for

it is irrelevant, however, to the question at hand: regardless of other legal

sources, does the statute itself place substantive limits on the DOC’s exer-

cise of discretion? As I explained supra, the provision’s preservation to

the DOC of discretion to deny transfer only “in the event that it makes one

of the four determinations[,]” is precisely the type of substantive limitation

that gives rise to the liberty interest asserted here.

7

The majority contends that I read too much into the use of the word

“liberty interest” in these cases. It first argues that the liberty interest rec-

ognized by the Washington Court of Appeals is merely procedural, rather

than substantive, in nature. Maj. Op. at 16658 (“[T]hose cases concerned

only the procedural right to compliance with individualized consideration

CARVER v. LEHMAN 16677

In sum, I would hold once again that the Washington statu-

tory scheme governing transfer to community custody of

those inmates who have earned early release time creates a

liberty interest that is protected under the Due Process Clause

of the Fourteenth Amendment. Having found this liberty

interest, I would, like the original panel, go a step beyond the

current majority and consider “whether the procedures atten-

dant upon th[e] deprivation [of Carver’s liberty interest] were

constitutionally sufficient[.]” Kentucky Dept. of Corrections

v. Thompson, 490 U.S. 454, 460 (1989). Carver’s release plan

was denied under a categorical policy that provided him with

no process at all; it simply rejected all plans of offenders who,

like Carver, appeared to fall under the definition of a sexually

violent predator and who were referred for civil commitment.

Accordingly, the complete absence of procedures deprived

on the merits of prisoners’ release plans . . . .”). To the contrary, the Wash-

ington court explained: “An inmate’s interest in his earned early release

credits is a limited, but protected, liberty interest. Likewise, the depart-

ment’s compliance with requirements of statutes affecting his release is a

protected liberty interest.” See In re Liptrap, 111 P.3d at 1231 (quoting In

re Dutcher, 60 P.3d at 636) (emphasis added). As this language makes

clear, the Washington court recognizes a liberty interest in both the sub-

stantive right to earned early release (here, in the form of transfer to com-

munity custody) and the distinct procedural right to have the DOC comply

with the requirements of the statutes governing such release.

The majority next suggests that “To the extent [the Washington deci-

sions] contain dicta using the same term, ‘liberty interest,’ to refer to both

a substantive right to transfer and a procedural right to consideration on

the merits, the most logical reading is that both derive from Washington

law, and are hence of the same sub-constitutional nature.” Maj. Op. at

16658. That the Washington court had the federal Due Process Clause—

and not a sub-constitutional right—in mind when analyzing section

9.94A.728(2) is, again, evidenced by the plain language of its decision in

Liptrap, where the court framed its discussion of the interest at stake in

the familiar terms of federal due process jurisprudence. See In re Liptrap,

111 P.3d at 1231 (explaining that “[d]ue process protects against the depri-

vation of life, liberty, or property” and finding that “[a]n inmate’s interest

in his earned early release credits is a limited, but protected, liberty inter-

est”).

16678 CARVER v. LEHMAN

Carver of his liberty interest in transfer to community custody

without due process of law.

Finally, I would note that the majority’s analysis of whether

Carver presents a danger to the community is entirely beside

the point. That is not a question for this court. Whether the

prison officials followed the law is. Equally important, the

fact that the statute creates a liberty interest does not mean

that it does not also serve the purpose of protecting the com-

munity. The majority states that the purpose of the statute is

to provide “discretion for DOC officials precisely so they may

deny release plans of prisoners like Carver who remain threats

to the community.” Maj. Op. at 16657. But in establishing a

liberty interest, the Washington statute did not ignore legiti-

mate concerns about the safety of the community. Indeed,

among the four permissible reasons for denying transfer into

community custody are whether such transfer would “place

the offender at risk to reoffend, or present a risk to victim

safety or community safety.” WASH. REV. CODE

§ 9.94A.728(2)(d). This threat to the community, however,

must be established through a proper procedure in order to

justify the deprivation of the inmate’s liberty interest; it is not

simply left to the unbridled discretion of the DOC. The point,

then, is that inmates have a constitutionally-protected liberty

interest in release to community custody such that when the

DOC denies release, it must do so for one of the statutorily-

enumerated reasons, and it must do so pursuant to proper pro-

cedures. Here, neither requirement was met. The prison offi-

cials simply ignored the statutory requirements and

categorically denied all prisoners like Carver the release to

which they may have been entitled. Thus, Carver and others

were denied their due process rights. Let me make it abso-

lutely clear, I do not contend that Carver was entitled to

release. He may well not have been. On this record, however,

we cannot know. Had the DOC followed the procedures pro-

vided by statute, and had it found that Carver’s release “pre-

sent[ed] a risk to community safety,” the prison authorities

could well have retained him in custody. Following the law

CARVER v. LEHMAN 16679

is not that difficult, and we are entitled to expect no less from

our officials, prison or otherwise.

II. Qualified Immunity

Although unlike the current majority I conclude that Carver

was deprived of a liberty interest, I would as did the original

majority affirm the district court’s finding of qualified immu-

nity and therefore concur in the current majority’s judgment.

Qualified immunity protects “government officials . . .

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity

analysis proceeds in two parts. First, we consider whether

“the facts alleged show that [Lehman’s] conduct violated a

constitutional right[.]” Galen, 477 F.3d at 658-59 (citing Sau-

cier v. Katz, 533 U.S. 194, 200-02 (2001)). For the reasons

discussed above, I would answer this question in the affirma-

tive. Second, we ask if “the right [Lehman is] alleged to have

violated [was] clearly established such that a reasonable [offi-

cial] would have understood that he was violating that

right[.]” Id. I conclude that the answer to this question is no.

In determining whether the right alleged to have been vio-

lated was clearly established, we must consider the right “in

light of the specific context of the case, not as a broad general

proposition[.]” Saucier, 533 U.S. at 201. “ ‘The contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.’ ”

Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). Here, because section 9.94A.728(2)(d)

does not use the more common mandatory term “shall,” a rea-

sonable correctional official might not have understood that

the Washington statutory scheme created a liberty interest in

early release into community custody. Certainly, the question

was highly debatable at the time that Lehman was required to

16680 CARVER v. LEHMAN

act. Carver’s plan was denied before the Washington Court of

Appeals had issued its decisions in Dutcher and Liptrap,

which clarified that not only does a limited liberty interest

exist under state law, but that the DOC’s discretion to deny

release into community custody is limited to rejection of a

plan on the basis of the legitimate statutory criteria set forth

in section 9.94A.728(2)(d).

Because I conclude, as did the original majority, that the

right at issue here was not sufficiently clear at the time of the

facts giving rise to this case such that a reasonable official

would understand that denying a release plan without provid-

ing a legitimate statutory reason for that denial would violate

due process, I would once again affirm the district court’s

grant of qualified immunity.

III. Conclusion

Washington state law creates a liberty interest in an

inmate’s early release into community custody that is pro-

tected under the Due Process Clause of the Fourteenth

Amendment. Carver was denied his due process right by the

state officials’ refusal to approve his release plan without

reviewing it on its merits. At the time, however, the due pro-

cess right arising from the existence of his liberty interest was

not sufficiently clearly established to meet the Saucier stan-

dard. Because I would affirm the district court’s determina-

tion that Lehman is entitled to qualified immunity, I therefore

concur in the majority’s judgment, but I respectfully disagree

with its reasoning.