Angell v. Henneberry

WILNER, Chief Judge. The legal issue before us in this appeal is simple and straightforward. Appellant, Robert Angelí, has been an inmate at Patuxent Institution since August, 1977. 1 In 1990, the authorities at Patuxent decided that he should not remain there any longer and proposed to transfer him to the jurisdiction of the Division of Correction for placement in one of its institutions. Under internal procedures followed by Patuxent and, as we shall hold, under the “due process” clause of the Fourteenth Amendment, Angelí is entitled to a hearing to determine whether he should be transferred.

The sole question is whether he is entitled to the assistance of counsel at that hearing. Although the record before us gives us great concern over the manner in which Mr. Angelí has been treated by Patuxent, our conclusion is that he is not entitled to counsel at that hearing. The Facts Angelí came to Patuxent as the result of a number of crimes that he committed during the period August, 1975— ²⁸² March, 1976, when he was 17-18 years old. In August, 1975, he stole a shotgun from a house that he burglarized.

Later that month, he shot and killed a young boy with the gun; why he did that is not revealed in the record before us. In March, 1976, he used the gun to rob a bank and, in an ensuing attempt to elude capture, he shot and killed two Montgomery County police officers. Convicted subsequently in the Circuit Court for Montgomery County of three counts of first degree murder, he was sentenced to three consecutive sentences of life imprisonment, the trial judge suggesting at the time that Angelí should “never be considered for parole.” Notwithstanding the judge’s comment, Angelí would be eligible for parole in the year 2010. At the time Angelí was sentenced, Patuxent was governed by the Defective Delinquency law as set forth in art. 31B of the Md.Code (1976 Repl.Vol.).

A person could be admitted to that institution, only after conviction of a crime and upon a finding by a judge or jury that he was a “defective delinquent,” as defined in the law. Upon such a finding, the finite sentence imposed by the criminal court was suspended in favor of an “indeterminate” sentence, i.e., the prisoner remained at Patuxent until either the institution or another court or jury determined that he was no longer a defective delinquent, in which event he would be released from confinement. Although most inmates resisted admission to Patuxent because of that indeterminate sentence, those with extraordinarily long sentences, such as Angell’s, sometimes looked favorably upon Patuxent because of the prospect that they could be released well before they would likely be paroled or serve their original finite sentence in one of the prisons operated by the Division of Correction. By order of the Circuit Court for Montgomery County, Angelí was sent to Patuxent in September, 1976 for evaluation to determine whether he met the definition of a defective delinquent.

While Angelí was undergoing his evaluation, the General Assembly made a number of significant changes in the law governing Patuxent. See 1977 Md.Laws, ch. 678, rewriting ²⁸³ art. 31B in its entirety. The concept of defective delinquency, and with it the indeterminate sentence, was repealed, and Patuxent was recast more as a treatment facility designed to rehabilitate inmates who could benefit from the program and were willing to cooperate with the treatment staff than as a warehouse for persons too incorrigible to be released back into society. Admission was available only to an “eligible person,” defined as one who (1) was serving a sentence with at least three years remaining on it, (2) had an intellectual deficiency or emotional imbalance, (3) was likely to respond favorably to the programs and services provided at Patuxent, and (4) could be better rehabilitated through those programs than by other incarceration.

See art. 31B, § 1(f); Watson v. State, 286 Md. 291, 298-99 , 407 A.2d 324 (1979). Pursuant to the transition provisions in the 1977 Act, Angelí was evaluated in accordance with the new criteria and was accepted as an eligible person. In the ensuing years, he made much progress, receiving his G.E.D., completing various trade courses, and, in 1986, receiving his grade 1 stationary engineer’s license. His work in the power plant was rated as good to excellent.

In 12 years, he had but two infractions — one in November, 1976 for possessing a “carved” bar of soap that was regarded as contraband and one in 1984 for referring to a guard as “ugly.” He had been on the “fourth level” — the level of highest progress — since 1979. Because of the nature of his crimes, however, and the publicity they had engendered at the time, his requests for leave days were denied until April, 1988. 2 At that time, accepting the treatment unit’s conclusion that Angelí was “no longer a danger to society and should begin a slow, gradual and structured re-entry into the community,” the Institutional Board of Review, charged under the law with making such decisions, granted ²⁸⁴ him a series of 15 day-long leaves, during which he was allowed to leave the institution and spend the day with his family. This action was taken in the face of a 1987 amendment to art. 31B, presumably prospective only in application, excluding from the definition of “eligible person” a person, like Angelí, who was serving two or more life sentences for murder. The leave days, taken during the period from April 9 to November 5, 1988, were without incident; no record exists of any misbehavior or violations on Angell’s part.

Unfortunately for Mr. Angelí, his leave status and that of other Patuxent inmates coincided with a number of wholly extraneous events that led to a significant reshaping of the Patuxent program. One of those events was the Presidential campaign of 1988 in which one Willie Horton became a household name and a symbolic object of great alarm. Another, feeding on the first, was the conduct of Patuxent inmate James Stavrakas, who, emulating Horton, escaped from a work release detail and was charged with raping a woman. Those events subjected the institution’s leave and work release programs to immediate and heightened public scrutiny.

On November 29, 1988, the Police Association of Montgomery County filed suit against the then-director of Patuxent seeking an order requiring that the institution’s leave policy be suspended, that Angell’s leave status in particular be cancelled, and that Angell’s eligibility to remain at Patuxent be reevaluated. Shortly thereafter, Secretary of Public Safety and Correctional Services Bishop L. Robinson was widely quoted as being openly critical of Patuxent’s leave program. As a result of an ex parte order entered in the lawsuit and pressure brought to bear on the institution, the leave program was administratively suspended in December, 1988, and the institution’s director eventually resigned. 3 ²⁸⁵ More permanent changes were made by the General Assembly in its 1989 session. By 1989 Md.Laws, chs. 6 and 7, both the governing structure and the programs of Patuxent were substantially revised.

The Board of Review, which decided such things as leave status, parole, and continued participation in the Patuxent program, was reconstituted, and victims were given the right to comment on proposed leave status and parole. Moreover, in an uncodified section 5, the Acts required that, before reinstituting the work release and leave programs at Patuxent, the Secretary of Public Safety and Correctional Services had to review the status of each eligible person who had been on work release or had leave status to determine whether the inmate was a threat to public safety. In a new section 4 added to art. 3 IB, the Secretary was directed to adopt regulations to carry out the provisions of the article. Except for regulations “pertaining only to routine internal management of the Institution,” those regulations were to comply with the Administrative Procedure Act (APA).

The new Acts, declared to be emergency measures, took effect on March 20, 1989, when signed by the Governor. Under the 1977 law, the director of the institution was authorized, but not directed, to adopt regulations. Although nothing was said then in art. 31B about compliance with the APA, it seems clear that a regulation adopted by the director was subject to and had to comply with the Act. See State Gov’t art., § 10-101(e), defining “regulation,” and § 10-102, setting forth the scope and applicability of the law.

Nonetheless, in 1985 the director issued a number of regulations dealing with the procedure for reviewing the status of eligible persons without complying with the Act. The most glaring omission is that they were not published in either the Maryland Register or in COMAR, as required by §§ 10-114 and 10-117; nor is there any indication that they were submitted to and approved by the Attorney ²⁸⁶ General, as required by § 10-107. One of those regulations, identified as PIR No. 240-1, was designed “[t]o establish the duties and powers of the Institutional Board of Review to the extent allowed by law.” It required, in pertinent part: “A. Annual Review — The Board of Review shall review the eligibility status of each eligible person at least once each year, and shall find either that the E.P. remains eligible or notify the E.P. that his eligibility for the treatment program will be reconsidered at the next Board of Review session for his unit, at which time the E.P. may be returned to the Division of Correction within ninety (90) days of notice being made to that agency.” and “F. Special Eligibility Reviews — The Board of Review shall review the eligibility status of any E.P. when ... (3) the treatment unit recommends that an E.P. no longer remains eligible for the program ... and shall find either that the E.P. remains eligible or that the E.P. is no longer eligible and is to be returned to the Division of Correction within ninety (90) days of notice being made to that agency.” A second regulation (PIR No. 240-4) provided for three kinds of Board of Review sessions: regular sessions, held for the purpose of conducting annual reviews and certain other business; executive sessions, held for the purpose of deciding special requests and other non-administrative matters not requiring the presence of the eligible person; and administrative sessions, held for the purpose of reviewing policy and other business of an administrative nature not requiring the presence of the eligible person.

A third regulation (PIR No. 240-5), designed to “establish guidelines regarding the necessity of Board of Review hearings and the presence of the interested inmate/parolee,” provided, in pertinent part, that a “formal” hearing was required for parole revocation, an “informal” hearing was required for certain other matters, including “Status recommenda ²⁸⁷ tions” and “Special Eligibility reviews,” and no hearing was required for parole extension recommendations and special requests concerning individual leaves for inmates on leave status. The regulation did not define what was meant by “formal” and “informal” hearings or what the attributes of each might be. Finally, for our purposes, Regulation PIR No. 240-6, designed to “establish a procedure for notifying inmates that they are to appear before the Board of Review,” required the Executive Secretary to the Board to notify each eligible person scheduled for an annual review at least one week prior to the date of the hearing. A similar one-week notice was required for the special eligibility reviews, i.e., if the Board was to consider a recommendation that the inmate lose his eligibility status.

That notice was also to contain “a specific statement of the reason for the recommendation made against him.” Notwithstanding the clear direction in the 1989 law that regulations complying with the APA be adopted, at the time of the ultimate hearing on January 16, 1992, no such regulations concerning eligibility review or the kind of hearing required with respect to such review had been adopted. Nearly three years after the enactment of that legislative mandate, Patuxent continued to operate under the 1985 regulations which themselves appear not to be in compliance with the law. 4 By December, 1989, the new Board of Review had been appointed. On December 13, the Board held a leave review hearing with respect to Angelí. This was presumably pur ²⁸⁸ suant to the uncodified § 5 of the 1989 law.

See Holmes v. Robinson, 84 Md.App. 144 , 578 A.2d 294 (1990), cert. denied, 321 Md. 501 , 583 A.2d 275 (1991). An attorney for Mr. Angelí was permitted to attend the hearing, but he was not allowed to call any witnesses or question the Board members and was restricted to consulting with Angelí and making a five-minute summation. In stark contrast to the prior Board’s conclusion in April, 1988 that Angelí was “no longer a danger to society,” and despite the lack of any problem with the 15 day-leaves actually taken in 1988, the Board recommended against restoring his leave status. In its written report, the Board gave as its reasons the facts that (1) Angelí was serving triple life sentences for three murders, (2) he had served but 13 years and eight months of those sentences, and, as such, “he has not been adequately deterred from future demonstrations of criminality,” (3) his release “would depreciate the seriousness of his crimes and promote disrespect for the criminal justice system,” (4) his continued incarceration would “substantially enhance his ability to lead a law abiding life when released at a later date,” (5) he had not demonstrated “true emotional maturity and insight into his problems and appears to have made only superficial personality change,” and (6) he had not been “adequately rehabilitated and continues to pose a threat to public safety.” The Board, however, noted that its recommendation against the restoration of leave status should not be regarded as a conclusion that he was no longer eligible for participation in the leave program “or may not be restored to pre-release at some future date.” Worse news followed.

On March 15, 1990, Secretary Robinson informed Angelí that “after examination of the available relevant data and records regarding your status,” none of which were described, he had concluded that Angelí would pose a threat to public safety if returned to leave status and that such status would therefore not be restored. More importantly, Secretary Robinson stated that he was recommending that, at its next scheduled annual review, the ²⁸⁹ Board of Review determine “whether or not you should remain at the Institution as an eligible person.” Upon receipt of this letter, and believing that his removal from Patuxent was imminent, Angelí, on April 9, 1990, attempted suicide. 5 He was thereupon removed to the hospital wing at the nearby Maryland Correctional Institute at Jessup, where he underwent psychiatric evaluation and therapy for almost six months. On October 1, 1990, having concluded that he was no longer a danger to himself, the prison psychiatrists allowed Angelí to return to Patuxent. Immediately upon his return, Angelí was placed in administrative segregation.

During the next three days, Angelí was examined at least three times by a Patuxent psychiatrist. On the day of his return, notwithstanding the views of the psychiatrists at the Maryland Correctional Institute, the Patuxent psychiatrist concluded that Angelí posed “a definitive risk of self injury” and that there was a high “index of probability for suicide attempt.” On October 3, after another examination, the unit psychiatrist determined that Angelí had an “Adjustment Disorder” and a “Schizoid Personality Disorder” and that, after 14 years of imprisonment and no history of contraband beyond the bar of soap in 1976, he had a problem with alcohol dependence, cannabis abuse, and hallucinogen abuse. That same day, he was given notice that the next day — October 4 — he would be appearing before the Board for a determination of his eligibility status. That one-day notice, of course, was in direct violation of Regulation PIR No. 240-6, requiring seven days’ notice.

Angell’s attorney was notified of the scheduled hearing on October 2; he was told, however, that he would not be permitted to attend. ²⁹⁰ On October 4, through his lawyer, Angelí filed this action in the Circuit Court for Howard County seeking an order (1) enjoining the Director and Board of Review from holding the review hearing and from transferring him out of Patuxent, and (2) declaring that he had a right to be represented by counsel at all administrative hearings related to his status. The court promptly granted an ex parte injunction restraining the defendants from holding any hearing to reexamine Angell’s status unless he was represented by counsel. That remained in effect until December 3, 1991 when, in a Memorandum and Order, the court concluded that Angelí had no “right” to confinement at Patuxent, that reexamination of his eligibility status was not a contested case within the meaning of the APA, that there were no substantive limitations on the discretion of the Board to transfer him, and that “[cjonsequently, no right to counsel, private or appointed, exists at the eligibility or status review proceedings.” Angell’s motions to amend and stay the enforcement of the judgment were denied on January 14, 1992. Two days later, the Board held a hearing of some sort, which counsel for Angelí was not allowed to attend, and declared that Angelí was no longer eligible to remain at Patuxent.

That same day, but apparently after the hearing was held, Angelí filed this appeal and sought from this Court an injunction staying the Board’s order. By majority vote, a panel of this Court granted the stay. At some point after Angelí filed this action in October, 1990, he was transferred without benefit of any hearing to the hospital unit at the Maryland Penitentiary, supposedly because he needed medical treatment that could not be provided at Patuxent. The nature of this required treatment and the circumstances of the transfer are not disclosed in the record.

In his motion for stay filed in this Court on January 16, 1992, we were informed that, as of then, Angelí no longer needed to remain at the penitentiary for medical treatment but that Patuxent, having effectively transferred him there, refused to accept him back. Upon ²⁹¹ the entry of our stay, however, Angelí was returned to Patuxent and placed in the mental health unit, where he remains to this day. We have laid out this long history in order to document the great reluctance with which we feel compelled to affirm the denial of the specific relief requested by Angelí. For the reasons we shall immediately explain, while we believe that he has a liberty interest in remaining at Patuxent, we do not believe that he is entitled to counsel at a hearing held to reconsider his eligibility.

It may be that the procedure employed by the Board of Review did not comport with due process in other respects, but that is not before us. Based on the complaint and the arguments made to the Circuit Court, we are concerned here only with the entitlement to counsel. Discussion Angelí claims an entitlement to counsel at eligibility review hearings on two specific grounds: one, that a liberty interest is at stake and counsel is therefore required by due process considerations; and two, that eligibility review hearings constitute contested cases under the APA and that Patuxent is barred from interfering with an attorney’s right to represent his client at such hearings. 6 A. Due Process The United States Supreme Court has dealt with the due process issue at hand in a number of cases, beginning with Meachum v. Fano, 427 U.S. 215 , 96 S.Ct. 2532 , 49 L.Ed.2d 451 , reh. denied, 429 U.S. 873 , 97 S.Ct. 191 , 50 L.Ed.2d 155 ²⁹² (1976) and Montanye v. Haymes, 427 U.S. 236 , 96 S.Ct. 2543 , 49 L.Ed.2d 466 (1976) and continuing with Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 , 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979); Vitek v. Jones, 445 U.S. 480 , 100 S.Ct. 1254 , 63 L.Ed.2d 552 (1980); Hewitt v. Helms, 459 U.S. 460 , 103 S.Ct. 864 , 74 L.Ed.2d 675 (1983); Olim v. Wakinekona, 461 U.S. 238 , 103 S.Ct. 1741 , 75 L.Ed.2d 813 (1983); Board of Pardons v. Allen, 482 U.S. 369 , 107 S.Ct. 2415 , 96 L.Ed.2d 303 (1987); and Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 , 109 S.Ct. 1904 , 104 L.Ed.2d 506 (1989). The general teaching of those cases, taken from Meachum, 427 U.S. at 224-25 , 96 S.Ct. at 2538 , and quoted in Olim, 461 U.S. at 244-45 , 103 S.Ct. at 1745 , is that: “The initial decision to assign the convict to a particular institution is not subject to audit under the Due Process Clause, although the degree of confinement in one prison may be quite different from that in another.

The conviction has sufficiently extinguished the defendant’s liberty interest to empower the State to confine him in any of its prisons. Neither, in our view, does the Due Process Clause in and of itself protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State’s institutions is within the normal limits or range of custody which the conviction has authorized the State to impose.” (Emphasis in second paragraph added.) Indeed, in Olim , the Court found no liberty interest in confinement within a particular State, and thus the transfer of a prisoner from one State to another or between a State institution and a Federal one “does not deprive an inmate of any liberty interest protected by the Due Process Clause in and of itself.” (Emphasis added.) 461 U.S. at 248 , 103 S.Ct. at 1747. As each of these cases makes clear, however, while a transfer does not, of itself, implicate due process constraints, the State may create a liberty interest invoking those constraints if the decision to transfer is not an entire ²⁹³ ly discretionary one, i.e., if the State places substantive limitations on the exercise of the decision-maker’s discretion.

Hewitt v. Helms, supra, 459 U.S. 460 , 103 S.Ct. 864 . But to have that effect those limitations must involve more than mere “procedural guidelines to channel the decision-making of prison officials” (Hewitt, at 471, 103 S.Ct. at 871); they must instead constitute “particularized standards or criteria [to] guide the State’s decisionmakers.” Olim, supra, 461 U.S. at 249 , 103 S.Ct. at 1747 , quoting from Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467 , 101 S.Ct. 2460, 2465-66 , 69 L.Ed.2d 158 (1981). The distinction seems to be between procedural guidelines and substantive standards. Continuing to borrow from Dumschat , the Olim Court noted that “[i]f the decisionmaker is ‘not required to base its decisions on objective and defined criteria,’ but instead ‘can deny the requested relief for any constitutionally permissible reason or for no reason at all,’ ... the State has not created a constitutionally protected liberty interest.” Angell’s argument, of course, is that there were “particularized standards” or “objective and defined criteria” governing his eligibility status.

Apart from the procedural aspects of the 1985 regulations, calling for notice and an “informal” hearing, he