1.30 WRITS OF HABEAS CORPUS AND PERSONAL RESTRAINT PETITIONS

Isolation and quarantine orders are civil (not criminal) actions that impose a civil “restraint” upon an individual by the state. WAC 246-100-055 establishes procedures for relief from isolation and quarantine in some circumstances. An individual might, however, choose to seek relief via normal appellate review, or under two related mechanisms: a petition for a writ of habeas corpus or a personal restraint petition. This section provides a procedural overview of these mechanisms; it does not provide a substantive discussion of the habeas corpus or personal restraint petition law, which will necessarily be highly fact dependent.

A. Petition for Writ of Habeas Corpus

1. Controlling law. Petitions for a writ of habeas corpus are governed by chapter 7.36 RCW.

2. Jurisdiction. Writs of habeas corpus may be granted by the Supreme Court, the Court of Appeals, or Superior Court. RCW 7.36.040.

   When a writ of habeas corpus is filed in either the Court of Appeals or the Supreme Court, it will be considered as a personal restraint petition pursuant to the rules of appellate procedure. “These [rules] establish a single procedure for original proceedings in the appellate court to obtain relief formally available by petition for writ of habeas corpus.” RAP 16.3(a).

   When a writ of habeas corpus is filed in Superior Court, it should probably be considered by the trial court and not transferred to an appellate court. (Dicta by the Supreme Court in a criminal case allows a habeas petition to be transferred to the appellate courts as a personal restraint petition. See Toliver v. Olsen, 109 Wn.2d 607, 746 P.2d 809 (1987). It is unclear whether this rule applies in the civil context of an isolation or quarantine order.)

   The personal restraint petition rules set forth in RAP 16 do not apply to habeas corpus proceedings in Superior Court.

3. Who may file writ of habeas corpus. Any person “restrained of his liberty under any pretense whatever, may prosecute a writ of habeas corpus.” RCW 7.36.010. Parents, guardians, spouses, and next of kin may file on behalf of the restrained individual. RCW 7.36.020.

4. Contents and writ. The writ of habeas corpus must be signed and verified and specify:

   1. By whom the petitioner is restrained of his liberty, and the place where, (naming the parties if they are known, or describing them if they are not known).

   2. The cause or pretense of the restraint according to the best of the knowledge and belief of the applicant.

   3. If the restraint be alleged to be illegal, in what the illegality consists. RCW 7.36.030.

5. Effect of writ. The writ of habeas corpus requires the officer or party restraining the individual to bring the restrained person before the court “at such time and place as the court or judge shall direct” to “do and receive what shall be ordered by the court.” RCW 7.36.050.

   In the case of an individual isolated or quarantined for public health reasons, the court may exercise its discretion under this provision (“at such time and place as the court or judge shall direct”) and, if necessary, direct the person to appear by telephone conference call (or other reasonable limitation). See infra § 7.00.

6. Duty of court to act “without delay.” Writs of habeas corpus must be acted upon – that is, the individual brought before the court – “without delay.” RCW 7.36.040.

   In the public health context, this may result in writs of habeas corpus being filed in Superior Court in an effort to obtain a quick decision. As discussed below, writs of habeas corpus filed in the Court of Appeals or Supreme Court are considered as personal restraint petitions and subject to an established briefing schedule.

7. Standard of review. Generally, a habeas petitioner must show actual prejudice resulting from constitutional error. In re Hagler, 97 Wn.2d 818, 825-26, 650 P.2d 1103 (1982). An individual seeking habeas relief who relies on bare allegations unsupported by citation to authority, facts, or persuasive reasoning cannot sustain his or her burden of proof. In re Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990).

B. Personal Restraint Petitions

1. Controlling law. Personal restraint petitions are governed by RAP 16.3 to 16.15, RAP 16.24 to 16.27, and chapter 10.73 RCW.

2. Jurisdiction. The Court of Appeals and Supreme Court have concurrent jurisdiction over personal restraint petitions. However, the Supreme Court will usually exercise its jurisdiction by transferring the petition to the Court of Appeals. RAP 16.3(c), 16.5(b).

   A personal restraint petition filed in Superior Court should be transferred to the Court of Appeals for lack of Superior Court jurisdiction. See State v. Mott, 49 Wn. App. 115, 742 P.2d 158 (1987); RAP 16.3, 16.8.

   The appellate courts may transfer a personal restraint petition to Superior Court to determine specific facts or for a decision on the merits. RAP 16.11, 16.12, 16.14.

3. Elements of a personal restraint petition. RAP 16.7 sets forth the mandatory elements of a personal restraint petition, which include:
   1. Status of Petitioner
   2. Grounds for Relief
   3. Statement of Finances
   4. Request for Relief
   5. Oath
   6. Verification (criminal proceedings only)

4. Government parties. When the responding party is the government, the petitioner need not name the specific agency or individual responsible for allegedly restraining the person’s liberty. The governmental agency or person most familiar with the original proceedings shall respond to the petition. Two or more agencies may file separate or joint responses. RAP 16.6.

   In the public health context, the agency responsible for requesting the isolation or quarantine order would be the responding party.

5. Standard of Review. To prevail on a personal restraint petition, an individual must show that he or she is unlawfully restrained. In re Cashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994); RAP 16.4. To establish unlawful restraint, the petitioner must show either a constitutional violation or a violation of the laws of the State of Washington. RAP 16.4(c)(2), (6); In re Personal Restraint Petition of Liptrap, 127 Wn. App. 463, 469, 111 P.3d 1227 (2005). Specifically, petitioner must show either: (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a “complete miscarriage of justice.” In re Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).

   Finally, in order to prevail in a personal restraint petition, a petitioner must set out the facts underlying the challenge and the evidence available to support the factual allegations. In re Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). Bare assertions and conclusory allegations are insufficient to gain consideration of a personal restraint petition. Id. at 886.