On January 13, 2006, the Governor received an appeal from Boyd Stacey of Aberdeen, Washington, relating to the Department of Corrections' rule contained in WAC 137-28-260 (507 Infraction).
DATE: February 20, 2005
Richard E. Mitchell
General Counsel to the Governor
Boyd Stacy, DOC986567, AG07L
Clallam Bay Corrections Center
1830 Eagle Crest Way
Clallam Bay, WA 98326
Re: Your letter dated January 9, 2006
Petition under RCW 34.05.330(3) re WAC 137-28-260(1)/507 Infraction
Dear Mr. Stacy,
You have appealed the decision by the Department of
Corrections (DOC) to deny your request for repeal or amendment
of WAC 137-28-260(1). Specifically, you asked DOC to repeal
or amend the section of the above rule that relates to a 507
infraction. Having reviewed all of your petitions and DOC
responses, I have decided to deny your petition and will not
instruct DOC to initiate rule making.
In your above-noted letter, you expressed three primary
concerns as the basis for why DOC should repeal or amend WAC 137-28-260(1)/507 Infraction. While your letter indicates
that there are additional points in previous correspondence, I
have reviewed all of your petitions and have found no other
substantive concerns beyond those presented in the January 9,
2006 letter.
You alleged that "the (507) infraction is overbroad and as its
use shows there are no state or federal felonies listed in the
WAC 137-28-260 rules (sic)." According to the rule, a 507
infraction occurs when "committing any act that is a felony
under state or federal law that is not otherwise included in
these rules." This means that if an offender commits any act
that would constitute a felony under state or federal law, but
the state or federal law is not specifically identified in the
rules, infraction 507 covers such acts. The definition of a
507 infraction does not indicate the absence of state or
federal felonies listed under WAC 137-28-260(1). Some of the
infractions listed in WAC 137-28-260 are misdemeanors, some
are felonies, and other simply refer to conduct necessary for
the orderly operation of the institution. It should also be
noted that under WAC 137-28-160, any attempt to commit an
infraction is considered a commission of the infraction.
Second, you alleged that "the (507) is vague, because men of
normal understanding (DOC staff) can not tell when it applies,
nor can I (sic)." Your basis for this concern is that you
were accused of three violations, all of them misdemeanors
under state law, but were also charged with violating 507,
which only applies to felonies. However, several of the
charges you believe to be misdemeanors are felonies. You were
charged with attempted identity theft, RCW 9.35.020, and
criminal impersonation, RCW 9A.60.040, both of which are
felonies. Although identity theft and criminal impersonation
are felonies under state law, they are not specifically listed
in WAC 137-28-260(1).
Third, you allege that "the (507) denys equal protection
because as a class 'people who commit felony infractions' are
denied the right to a severity of conduct in their sanction,
all other infractions in the DOC 320.150 Sanction table enjoy
this ellement (sic)." Any unlisted act that is a felony under
state or federal law is a violation of 507. WAC 137-28-260(1)
only identifies infractions. It does not list the sanction
associated.
Finally, WAC 137-28-260(1) has been recently amended and those
amendments are scheduled to go into effect in May of this
year. WAC 137-28-260(1) will appear in WAC 137-25-030 and a
507 infraction will be a "Category A" serious infraction
defined as "committing any felony." This amendment seems to
address your concern regarding severity of sanction.
Sincerely,
Christine O. Gregoire
Governor