WSR 06-06-032

OFFICE OF THE GOVERNOR


[ Filed February 23, 2006, 10:46 a.m. ]


NOTICE OF APPEAL

RCW 34.05.330(3)



Pursuant to RCW 34.05.330(3), you are hereby notified for publication in the Washington State Register that:

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


OFFICE OF THE GOVERNOR


February 17, 2006

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

Washington State Code Reviser's Office