                                      No. 95-045
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                           1995


ANTHEL L. BROWNand
DEWEYE. COLEMAN,
              Petitioners        & Appellants,
         v.
HONORABLETED MIZNER, District                                   SEP 07 19%
Judge of the Third Judicial
District of the State of Montana,
Powell County,
              Respondent     & Respondent.




APPEAL FROM:         District  Court of the Third Judicial  District,
                     In and for the County of Powell,
                     The Honorable Ted Mizner, Judge presiding.


COUNSEL OF RECORD:
              For   Appellant:
                     Anthel L. Brown and Dewey E. Coleman,               Deer Lodge,
                     Montana (pro Se)
              For Respondent:
                     David L. Ohler,         Department    of Corrections,     Helena,
                     Montana


                                          Submitted   on Briefs:      August   3, 1995
                                                          Decided:     September   7, 1995
Filed:
Justice        William           E. Hunt,          Sr.,      delivered            the Opinion             of the Court.

          This      is      an appeal              from      an order            and opinion               in     the      Third
Judicial         District             Court,       Powell        County,         denying         Anthel        L. Brown and
Dewey E. Coleman's                      petition           for     additional           good-time               credits      for
unit       work      done          prior        to        July         1982      and       denying         petitioners'
application              for     habeas corpus.
          We affirm.
          We consider              the following                 issues       on appeal:
          1.       Did the District                       Court        abuse its         discretion              in denying
petitioners'              additional            good time for work done prior                              to July         1982?
          2.       Are petitioners                   entitled           to a writ        of habeas corpus                  based
on     the       Department              of     Correction's                denial          of     the      petitioners'
liberty          interest          in good-time              credits          for    work done prior                    to July
1982?
          This       appeal            comes         to      the        Court       following              a     disjointed
procedural               history           involving              different            petitioners.                     Several
inmates        at the Montana State                        Prison        filed      writs        of habeas corpus              in
the Third           Judicial            District          Court        seeking        retroactive               application
of good-time              credits          in light          of a U.S. District                    Court's         decision.
In     that       case,         the     court        ruled        that      § 53-30-105,              MCA, created                 a
protected           liberty            interest.            An interest             that         ensured        the receipt
of     good time               while       an inmate             was employed               by the        Montana          State
Prison.            The decision                has since           been appealed                 by the Department,
and the           Ninth          Circuit        Court        reversed            and remanded.                    Lattin       v.
McCormick           (9th        Cir.       1995),         46 F.3d 1142.


                                                                   2
              1n the         meantime,                 a number               of        hearings             concerning             the         awarding

of      additional                 good         time          for      employment                   were          held      in     1993.           Basing
his      decision                on a recent                   Montana               Supreme               Court         case,      Judge          Robert

BOYd I          ruled            the       award              of      good-time                  credit            was       a discretionary

determination,                         and       therefore,                    denied               the       inmates'              petition               for

writs          of        habeas          corpus.               Remington                 v.     Dept.         of     Corrections                  (1992),

255 Mont.                 480,         844 P.2d               50.

              The        inmates           then           appealed                  to        the     Supreme              Court.               Arledge,

et      al.         v.     McCormick                   (1993),            257           Mont.         543,         857      P.2d          738.           This

Court          found         for         the     petitioners                   on the               grounds          that         the     Department
of      Corrections                    failed            to        adopt           rules         and provide                  the        petitioners

with          the        appropriate                   good-time                   credits.                  The        Department               filed           a

motion          for        rehearing              showing               that         the petitioners                        had been provided

with          good-time                credits            for         their          employment                   as unit          workers             under

a recent                  administrative                           decision.                   On July             1,       1993,         this         Court

granted              the      motion             for       rehearing                     and ordered                a full          and          complete

record              upon      which            a decision                 could            be made.                The order                  denied       the

petitioners'                       writ          of        mandamus                     and         directed               future              petitions

concerning                  good-time                  credits             under              § 53-30-105,                  MCA,         to     be filed

with          the        Third         Judicial                District                  Court        in     order          to     ensure          a full

and complete                     record.

              In March             1994,         petitioners                   refiled               their         petition             in the         Third

Judicial                  District.                     Before             the           hearing             in      this         case,           several

motions              were        filed         concerning                  the Department's                         failure             to calculate

and           provide             the          additional                  good-time                  credits               for         petitioners.

Also,            as        mentioned                   earlier,                the            Department                 made       an         important


                                                                                    3
administrative                        decision                to     award            all            inmates,                 regardless                of      the
status        of         their            employment,                 good-time                      credit             for        work        done          after
July     1982.               The petitioners                         received                  this         additional                  credit.               This
left        only         the        question                of     good-time                    credits              for         work         done      before

July        1982.

                                                                           ISSUE           1

         Did            the         District                 Court           abuse                  its       discretion                       in      denying

petitioners                    additional                  good      time         for          work         done prior                  to      July         1982?

         Prior               to       1982,          the          Montana            State                Prison           allotted                 good-time

credit             based                  on         custody                classifications                                   as         provided                    in

5 53-40-105(l),                           MCA.       There          was no set                      departmental                    policy;            inmates
were        granted               good-time                  credits              ranging                   from          10       to     15         days       per

month.              In         July         1982,           the      Legislature                          added           a second                  provision
concerning                   good         time       with          regard            to        employment,                    § 53-30-132,                    MCA.

Based        on         this          statute,               the       Department                         adopted              a written                policy

entitling                inmates            who participated                              in     specific                 on-the-job                 training

or     vocational                     work           programs               to        receive                 13          days          per         month        of
good-time                    credits,                 in           addition                    to          credit                allowable                  under

5 53-30-105(a)                        -     (c),      MCA. Prison                    Inmate                Good-time                Policv           NO. 505,

October            1,        1982.             At    this          time,         petitioners                        did       not       qualify             under
this     provision                    for      the     extra          credits                  because             of      their         job        status       as

unit     workers.

         Then,               in     1992,           the       Department                    adopted                a policy               allowing              the

Department                   to     consider                all      employment                      when           determining                     good      time

because                 of        the            inherent                  educational                        value.                      Accordingly,

petitioners                   have received                       retroactive                   good         time          for      work        done prior


                                                                                 4
to 1992,           but after      July     1982.          The basis        of petitioners'               argument
is that       if     employment       is now considered                  when determining               good time
based on the educational                    value,        then employment            should        always        have
been considered             when determining                good time.
        The        petitioners           are     seeking          to     expand      subsection            (d)      of
5 53-30-105,           MCA, concerning               education          to include         employment          prior
to 1982:
        53-30-105.       Good time allowance.       (1) The department     of
        corrections       and human services           shall   adopt  rules
        providing     for the granting       of good time allowance      for
        inmates employed in any prison work or activity              and to
        implement subsection         (5). The good time allowance shall
        operate as a credit        on the inmate's     sentence as imposed
        by the court,     conditioned     upon the inmate's good behavior
        and compliance with the rules made by the department               or
        the warden. The rules adopted by the department               under
        this    subsection    may not grant good time allowance            to
        exceed:
                id; . 13 days per month for those inmates enrolled
                        .                                                                                 in
         school who successfully     complete the course of study                                         or
         who while      so enrolled   are released   from prison                                          by
         discharge    or parole   .  . .
However,           the plain        language         of the statute             does not provide                 for,
let     alone mandate,            the award of additional                      good-time       credits         based
upon      employment.                The       District       Court         found        the      Department's
discretionary             authority            for    the    similar           treatment          of    work      and
educational            pursuits          became possible                only     after      the        passage         of
5 53-30-132,            MCA.
         we hold        that      the District            Court        did not abuse its               discretion
in denying            petitioners          additional         good-time           credit       for      work done
prior     to July         1982.
                                                        ISSUE 2
         Are petitioners                 entitled        to a writ              of habeas corpus                   based on
the Department             of Correction's                denial           of the petitioners'                          liberty
interest        in good-time              credits        for       work done prior                to July               1982?
         A liberty          interest         may be created                 by state             statute           if         there
are substantive             regulations             on the exercise                   of official              discretion.
Baumann v. Arizona                 Dept.         of Corrections                 (9th     Cir.       1985),         754 F.2d
841.       In this         case,     the petitioners                     argue        their      liberty           interest
lies     in the Department's                 obligation             to adopt rules                for     the granting
of good time         for      inmates         employed in "any"                   prison         work or activity
under      5 53-30-105,            MCA.
         This    Court       recently            looked        at the issue              of liberty               interests
in relation          to good time.                  Reminqton,             844 P.2d 50.                 In that               case,
an inmate         argued       he had a liberty                     interest           in good          time       based on
his     participation              in a correspondence                     course.              The Court,               in     its
holding,        found the Department                    had "virtually                 unfettered              discretion"
in establishing             the rules            that     govern         the application                 of good time.
Reminqton,         844 P.2d at 52.
         Since       the      Department's                 grant           of     authority               is       entirely
permissive;          there          is      no      liberty         interest             created           through               the
substantial          statutory              regulation              of      the        Department's                official
discretion.             The statute                 contains         no mandated                 "shallstl              for      the
rules      it    directs       the Department                  to make.               Reminqton,               844 P.2d at
52.        Accordingly,             the      inmates           have no liberty                    interest               in      the
rules.           The petitioners'                   extension            of a liberty               interest              in     the
Department's            obligation            to     adopt         rules        for      the     granting               of     good

                                                               6
time        would        be         inconsistent                   with         the          logic            of      the      Reminqton
decision.

          Therefore,                  we      hold          that           a     writ            of         habeas            corpus           is
inappropriate             because               the        inmates         do not            have          an unconstitutional

restraint           on        their          freedom           due         to       the         Department's                  denial           of
good-time           credit.                Remington,              044 P.2d             at      53.

          Petitioners'                  application                  for        a     writ            of      habeas          corpus           is
denied.

          Pursuant        to          Section         I,     Paragraph                3 cc),          Montana          Supreme         Court

1988 Internal             Operating               Rules,           this         decision              shall          not     be cited          as
precedent           and shall              be published               by its           filing              as a public              document

with      the    Clerk         of      the      Supreme            Court        and by a report                        of     its     result

to     Montana       Law Week,               State          Reporter            and West               Publishing              Company.



                                                                                                                   Justice
We Concur:
