In re the Personal Restraint of Meyer , 142 Wash. 2d 608 ( 2001 )

Talmadge, J.

— We are asked in these three consolidated cases to decide if the risk classification of certain sex offenders by the Department of Corrections (Department) and local law enforcement authorities pursuant to RCW 4.24.550 and RCW 72.09.345,¹ violates the due process rights of those sex offenders when the consequences of such risk classification provide for the release of information about those offenders to the public. We hold no liberty interest arises from the United States or Washington State Constitutions. Nor does a liberty issue arise from compliance with the risk level classification of RCW 4.24.550 and RCW 72.09.345 insofar as the statutes are essentially procedural and do not implicate the offenders’ protected privacy rights. We affirm the Court of Appeals’ decisions in each of these three cases.

ISSUES

1. Do the risk classification and community notification procedures of the 1990 community protection act relating to sex offenders violate petitioners’ rights to due process of law?

2. What process is due these sex offenders?

3. Should the Court stay the enforcement of any community notification regarding these sex offenders?

FACTS

Petitioners Meyer, Erickson, and Sundstrom are convicted sex offenders still in the Department’s custody. On November 24, 1992, Douglas Meyer was convicted of second-degree rape in the Grant County Superior Court pursuant to RCW 9A.44.050(l)(a); the trial court subsequently sentenced him to 72 months’ imprisonment. In anticipation of his release, the Department’s End of Sentence Review Committee (ESRC) classified Meyer as a Level I sex offender. On June 8, 1999, Meyer filed a personal restraint petition (PRP) in the Court of Appeals, Division Three, challenging this classification. He claimed the sex offender registration and community notification procedures of the 1990 act violated his right to procedural due process in several respects. He also asserted entitlement to an immediate hearing in which the State would bear the burden of proving by clear and convincing evidence he was likely to reoffend or posed a threat to the community. Unconvinced, the Court of Appeals dismissed Meyer’s petition as time barred and meritless. In re Personal Restraint of Meyer, No. 18496-0-III (Wash. Ct. App. June 11, 1999).

On June 18, 1993, Eric Erickson pleaded guilty to two counts of first-degree child molestation in the Snohomish County Superior Court pursuant to RCW 9A.44.083; the trial court subsequently sentenced him to 89 months’ imprisonment. In anticipation of his release, the ESRC classified Erickson as a Level III sex offender. On January 21, 1999, Erickson filed a PRP in the Court of Appeals, Division One. Erickson argued the State had deprived him of a liberty interest without due process of law in violation of both the United States and Washington Constitutions. The Court of Appeals dismissed Erickson’s petition, reasoning registration and community notification do not create an affirmative restraint. In re Personal Restraint of Erickson, No. 44100-1-1 (Wash. Ct. App. Aug. 16, 1999).

On September 4, 1997, Bradley Sundstrom pleaded guilty to second-degree child molestation pursuant to RCW 9A.44.086; the trial court sentenced him to 41 months’ imprisonment. In anticipation of Sundstrom’s release, the ESRC classified him as a Level III sex offender. On July 9, 1999, Sundstrom filed a PRP with us, which we subsequently transferred to the Court of Appeals, Division Two, pursuant to RAP 16.3(c) and 16.5(b). Sundstrom, like the other petitioners, claimed the registration and community notification procedures violated his right to procedural due process. The Court of Appeals dismissed Sundstrom’s PRP, finding “Sundstrom is not challenging a ‘restraint,’ as is required for relief to be available via personal restraint petition.” In re Personal Restraint of Sundstrom, No. 25267-8-II, slip op. at 2 (Wash. Ct. App. Nov. 17, 1999).

All three petitioners sought discretionary review, which we granted. We consolidated the petitions for the purpose of this proceeding.

ANALYSIS

To understand the issues in this case, it is first necessary to understand generally how the registration and community notification procedures of the 1990 community protection act function. The registration provision, RCW 4.24.550, requires any person who has been found guilty of, pleaded guilty to, or found not guilty by reason of insanity of any sex offense, as defined by RCW 9.94A.030(37), to provide his name, address, date and place of birth, place of employment, crime for which convicted, date and place of conviction, aliases used, and social security number to the sheriff in the county where the person resides or plans to reside. RCW 9A.44.130. The sheriff must also obtain a photograph of the individual and a copy of the individual’s fingerprints. RCW 9A.44.130(8).

The community notification provision, RCW 4.24.550(1), permits local law enforcement agencies to disclose some or all of the above-discussed registration information “when the agency determines that disclosure of the information is relevant and necessary to protect the public and counteract the danger created by the particular offender.” The Department’s ESRC initially assesses the danger posed to the community by the particular offender before release from confinement or the beginning of community custody or community placement. RCW 72.09.345(4). The ESRC classifies offenders as Level I for low risk of reoffense; Level II for moderate risk; and Level III for high risk. To support this classification, the ESRC has “access to all relevant records and information in the possession of public agencies relating to the offenders under review.” RCW 72.09.345(3). Then, the ESRC notifies the sheriff or other local law enforcement agency in the offender’s community of the recommended classification.

Local law enforcement agencies make the final determination of the risk level classification, after reviewing the ESRC’s recommendation. RCW 4.24.550(4)(b). The risk the offender poses determines the extent of community notification. Local law enforcement agencies can release information only to the extent such information is rationally related to the offender’s location, the “level of risk posed by the offender to the community,” and “the needs of the affected community members for information.” RCW 4.24.550(2). For persons classified at Level I, local law enforcement agencies may, upon request, disclose relevant, accurate, and necessary information to any victim or witness, or any individual community member who lives near where the offender resides, will reside, or is regularly found. RCW 4.24.550(3)(a). For Level II offenders, law enforcement agencies may also disclose such information to schools, child care centers, day care providers, and neighbors and community groups near where the offender resides, expects to reside, or is regularly found. RCW 4.24.550(3)(b). And for Level III offenders, the information may be disclosed to the public at large. RCW 4.24.550(3)(c).

The statute makes no provisions for notice to the offender or a hearing before the ESRC or local law enforcement agency before the community is notified.²

We rejected various constitutional challenges to the 1990 act’s registration and notification statutes in State v. Ward, 123 Wn.2d 488, 869 P.2d 1062 (1994). With respect to the notification, we held the limited disclosure of registration information to the public does not amount to a “badge of infamy” and is not additional punishment for the offense. Id. at 500-02. We did not address the due process issue petitioners now raise. The petitioners here essentially contend the risk classification of RCW 4.24.550 and RCW 72.09.345 infringes on a liberty interest they enjoy and that they have been deprived of that interest without due process of law under both the state and federal constitutions.

I. Procedural Issues

As a threshold matter, the State contends the one-year statute of limitations found in RCW 10.73.090 bars all three petitions. Moreover, the State asserts the petitions do not qualify under the provisions of RAP 16.4(b) because the offenders are not under a “restraint.” The State has telling arguments on these points. We note all of the petitions were filed more than a year after the entry of the judgment and sentence. Thus, none of the exceptions enumerated in RCW 10.73.100 applies.

Moreover, our decision in Ward implies no restraint is created by these statutes. Ward, 123 Wn.2d at 500-02. Additionally, the Court of Appeals for the Ninth Circuit has held a sex offender who has completed his sentence and is subject to Washington’s registration requirement is not “in custody’ for purposes of the federal habeas corpus statute. Williamson v. Gregoire, 151 F.3d 1180 (9th Cir. 1998). State law does not require the petitioner to be “in custody.” However, the petitioner must show he is under an unlawful “restraint,” which includes any “disability resulting from a judgment or sentence in a criminal case.” RAP 16.4(b).

But despite these procedural arguments, in the interests of clarifying the law in this important area, we nevertheless choose to address and resolve the constitutional issues posed by the petitioners in light of the substantial public import of these issues. In re Personal Restraint of Myers, 105 Wn.2d 257, 261, 714 P.2d 303 (1986) (holding a personal restraint petition is also available to challenge unlawful state action, even if moot at the time of review, “ ‘when it can be said that matters of continuing and substantial public interest are involved.’ ” (quoting Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972)). We now turn to the merits of the petitioners’ cases.

II. Due Process

Petitioners argue a convicted sex offender is constitutionally entitled to notice and a hearing before his risk level classification is finally determined under RCW 4.24.550 and before any information about him is disseminated. The State contends the dissemination of offender information does not deprive the offender of a protected liberty interest.

The Fourteenth Amendment to the United States Constitution prohibits the governmental deprivation of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The threshold question we face here is whether the petitioners have been deprived of a protected liberty interest. In re Personal Restraint of Cashaw, 123 Wn.2d 138, 143, 866 P.2d 8 (1994). The analysis is the same under the Fourteenth Amendment or article I, section 3 of the Washington Constitution. See O’Hartigan v. Dep’t of Personnel, 118 Wn.2d 111, 117-18, 821 P.2d 44 (1991); Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 124, 937 P.2d 154, 943 P.2d 1358 (1997) (holding the Washington Constitution provides no more protection than the United States Constitution in the context of the interest in confidentiality, or the nondisclosure of personal information). The petitioners discern the initial existence of a protected liberty interest from the mandatory requirements of the community notification statute as we have interpreted it in State v. Ward, 123 Wn.2d 488, 869 P.2d 1062 (1994), the privacy interest protected by article I, section 7 of the Washington Constitution, or their interest in avoiding additional incarceration.

A. Community Protection Act

Liberty interests worthy of protection can arise from state laws. Cashaw, 123 Wn.2d at 144. But such a liberty interest is narrowly circumscribed. In Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the United States Supreme Court wrote “the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause.” Id. at 483. In Sandin, the Court wanted statutory due process liberty interests to “be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484. Thus, Sandin precludes prisoners from claiming a statutory or regulatory due process liberty interest with respect to a variety of relatively minor matters in the institutional setting.³

United States Supreme Court cases discerning the existence of a protected liberty interest are generally restricted to the prisoners’ rights context. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (prisoners’ rights to good time credits); Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) (prisoners’ interest in preventing transfer to prison in another state); Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 463, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989) (state law may create enforceable liberty interests in the prison setting); Bd. of Pardons v. Allen, 482 U.S. 369,107 S. Ct. 2415, 96 L. Ed. 2d 303 (1987) (prisoners’ interest in parole); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) (prisoners’ interest in good time credits); Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983) (prisoners’ interest in avoiding extra punishment in prison). No petitioner has cited a decision applying this statutory liberty interest analysis outside the context of a prisoner’s regulatory right to sentence reduction. Washington law is consistent with this narrow view of a liberty interest. See, e.g., In re Personal Restraint of Gronquist, 138 Wn.2d 388, 397, 978 P.2d 1083 (1999) (prisoners’ interest in good time credits); Cashaw, 123 Wn.2d at 144 (prisoners’ interest in parole); In re Personal Restraint of Powell, 117 Wn.2d 175, 203, 814 P.2d 635 (1991) (prisoners’ interest in the setting of a minimum sentence); In re Personal Restraint of Johnston, 109 Wn.2d 493, 497, 745 P.2d 864 (1987) (prisoners’ right to good time credits); In re Personal Restraint of Ayers, 105 Wn.2d 161, 164, 713 P.2d 88 (1986) (prisoners’ interest in “the potential of parole”); In re Personal Restraint of Piercy, 101 Wn.2d 490, 495, 681 P.2d 223 (1984) (prisoners’ interest in good time credits); In re Personal Restraint of Sinka, 92 Wn.2d 555, 565, 599 P.2d 1275 (1979) (prisoners’ liberty interest in the setting of minimum terms).

The seminal Washington case discussing a liberty interest arising from state statutes is Cashaw. There, we said of such a liberty interest:

For a state law to create a liberty interest, it must contain “substantive predicates” to the exercise of discretion and “specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow”. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 463, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989); Swenson v. Trickey, 995 F.2d 132,134 (8th Cir.), cert. denied, [510 U.S. 999, 114 S. Ct. 568, 126 L. Ed. 2d 468] (1993). Thus, laws that dictate particular decisions given particular facts can create liberty interests, but laws granting a significant degree of discretion cannot.

Cashaw, 123 Wn.2d at 144.

The petitioners argue RCW 72.09.345 and RCW 4.24.550, when read as construed in Ward, “contain [] substantive restrictions on official discretion.” Opening Br. at 13. The ESRC can classify as Level III only those offenders “whose risk assessments indicate a high risk of reoffense within the community . . . .” RCW 72.09.345(5). Although the local law enforcement agency is free to ignore this assessment and classify an offender higher or lower than the ESRC, RCW 4.24.550 puts what can be interpreted as substantive limits on the agency’s discretion by requiring the scope of any public disclosure of “relevant and necessary information ... [to] he rationally related” to the level of risk, the offender’s geographic location, and the needs of the community. RCW 4.24.550(2) (emphasis added).

The Court of Appeals for the Ninth Circuit recently dealt with that question and concluded, “[t]he collection and dissemination of information under the Washington law does not violate any protected privacy interest, and does not amount to a deprivation of liberty or property” without due process. Russell v. Gregoire, 124 F.3d 1079, 1094 (9th Cir. 1997), cert. denied, 523 U.S. 1007 (1998). The Court of Appeals for the Sixth Circuit recently rejected a due process challenge to a single-tier notification scheme. Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999) (finding no liberty or property interest at stake in the release of information about the offender’s identity and criminal conduct).

In the final analysis, however, we disagree with the petitioners’ view that the registration and disclosure statutes create substantive interests. In Ward, we determined these statutes were not punitive and did not create either an affirmative disability or restraint on sex offenders. See also Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997). In fact, in Cashaw, we declined to find a liberty interest for prisoners subject to parolability hearings by the Board of Prison Terms and Paroles when the Board allegedly failed to follow its own procedures. We found no liberty interest could arise from procedural laws. Parolability involved subjective appraisals with the Board assessing a myriad of imponderables. The risk level classifications here are not significantly different. The sex offender registration and disclosure statutes are essentially procedural statutes; no liberty interest arises from them.

B. Right to Privacy

The petitioners claim a liberty interest, under article I, section 7 of the Washington Constitution, in the information subject to disclosure because that constitutional provision affords significantly greater privacy protection than the United States Constitution. The petitioners misconstrue our case law. In examining just such a contention, we held the Washington Constitution provides no more protection than the federal constitution in the context of the interest in confidentiality, or the nondisclosure of personal information. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 124, 937 P.2d 154, 943 P.2d 1358 (1997). In that case, we even performed a Gunwall analysis and found no more protection under article I, section 7 of the Washington Constitution than under the Fourteenth Amendment. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Thus, the right of privacy guaranteed by the Washington Constitution in this setting has the same boundaries as that guaranteed by the federal constitution. Ino Ino, 132 Wn.2d at 124.

Persons have a limited right of confidentiality in the nondisclosure of criminal information, id. at 124; O’Hartigan v. Dep’t of Personnel, 118 Wn.2d 111, 821 P.2d 44 (1991), but such a right of confidentiality in the context of convicted sex offenders is essentially one of avoiding stigma or protecting reputation. But reputational interest does not give rise to a liberty interest. In Paul v. Davis, 424 U.S. 693, 712, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), the United States Supreme Court found an individual had no right to due process before police officers posted his picture with an identification as an “Active Shoplifter” in various retail establishments. That individual filed a 42 U.S.C. § 1983 action, alleging his procedural due process rights were violated and claiming a protected interest in reputation and future employment opportunities. Paul, 424 U.S. at 701. Justice Rehnquist examined a long line of decisions in which the Court had protected an interest in reputation, and then wrote an interest in reputation is “neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process of law.” Id. at 712. The Court reasoned if the government’s conduct is to be actionable, it must not only affect the individual’s reputation but must be accompanied by some other injury. Paul, 424 U.S. at 708-10. The Court ruled “reputation alone, apart from some more tangible interests” is not deserving of protection. Id. at 701. This holding has come to be known as the “stigma-plus” requirement.

The statutes at issue here do not meet the Paul “stigma-plus” requirements. The information disclosed to the public is largely, if not entirely, available from public sources like the court files on these individuals as well as their correctional release plans. The information disclosed is not subject to any specific confidentiality protection. See RCW 10.97.010; RCW 4.24.550(7). Conviction records may be released without restriction. RCW 10.97.050(1); Ward, 123 Wn.2d at 502.

Moreover, the public interest in information about potentially dangerous individuals in local neighborhoods is legitimate. This Court, the federal courts, and the Legislature all have recognized the validity of Washington’s sex offender registration laws and the important role registration and community notification play in the protection of the public. For example, in 1990 the Legislature added a new section to the act, which states:

NEW SECTION. Sec. 116. The legislature finds that sex offenders pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is a paramount governmental interest. The legislature further finds that the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Overly restrictive confidentiality and liability laws governing the release of information about sexual predators have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government. Release of information about sexual predators to public agencies and under limited circumstances, the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.

Therefore, this state’s policy as expressed in section 117 of this act is to require the exchange of relevant information about sexual predators among public agencies and officials and to authorize the release of necessary and relevant information about sexual predators to members of the general public.

Laws of 1990, ch. 3, § 116. See also Laws of 1990, ch. 3, §§ 117, 401, 402; Laws of 1991, ch. 274, § 1; State v. Ward, 123 Wn.2d 488. Preventing law enforcement agencies from issuing appropriate community notification would adversely affect an agency’s ability to assist parents in avoiding the potential for harm to their children.

While we recognize there are authorities to the contrary, see Doe v. Attorney Gen., 426 Mass. 136, 686 N.E.2d 1007 (1997); Noble v. Bd. of Parole & Post-Prison Supervision, 327 Or. 485, 964 P.2d 990 (1998); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 36 A.L.R.5th 711 (1995); Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593, 78 A.L.R.5th 731 (1999); E.B. v. Verniero, 119 F.3d 1077, 1105 (3d Cir. 1997), we do not believe the statutes here satisfy the stigma-plus formulation announced in Paul.

C. Avoiding Additional Incarceration

Finally, the petitioners claim they are being held beyond their minimum release date because of their designations as sex offenders. Sundstrom and Erickson both claim their respective classifications as Level III sex offenders preclude their release into community custody, so they are being imprisoned beyond their release date. The State contends the petitioners’ release plans “have been denied because the proposed address would violate the terms of the sentence or would place the Petitioner [s] in close proximity to potential victims.” Resp’t’s Suppl. Br. at 19.

Meyer apparently agrees. According to his reply brief, Meyer is “being held past his early release date because the proposed residences submitted by him have not been accepted by the Department of Corrections.” Reply Br. at 1. Yet, Meyer does not argue the process by which the Department evaluates proposed early-release residences violates his right to procedural due process. Thus, Meyer’s claim is without merit.

Sundstrom, Erickson, and the State have submitted affidavits in support of their respective positions. Sundstrom’s mother has apparently contacted several possible release facilities, all of whom refused to accept Sundstrom because he is a “Level III” sex offender. Decl. of Becky Sundstrom, App. 9 to Pet’r Sundstrom’s Mot. for Discretionary Review. Erickson, too, has faced some difficulty in finding a release address because of his classification as a Level III sex offender. At least one possible release facility has a “policy to only admit sex offenders who have been given a level one rating.” Pet’r’s Second Mot. to Supplement the R.

None of the Petitioners submitted any affidavits establishing a Level III classification prevents a housing provider from voluntarily agreeing to accept them. They also did not cite any authority to the effect the decisions of private housing providers constitutes sufficient state action establishing a deprivation of due process.

The State, however, submitted affidavits executed by several Community Corrections Officers (CCO) who claim the petitioners’ community placement plans were denied because they were contrary to the judgment and sentence of each respective petitioner. For example, Erickson’s judgment and sentence specifically prohibits contact with minors. Consequently, Erickson’s CCO avers that “[although, Mr. Erickson is a Level III offender, my decision to deny this plan was not based on his risk level classification.” Aff. of Skip Butler, Resp’t’s Mot. to Supplement the R. In the final analysis, no petitioner has established his incarceration has been prolonged because of his classification. Thus, the asserted liberty interest has not been established on this record.

CONCLUSION⁴

The petitioners have not established a liberty interest arising out of the provisions of RCW 4.24.550 or RCW 72.09.345, requiring the registration and classification of sex offenders upon their release from confinement, with implications for possible disclosure of information about them. In the absence of such a liberty interest, no due process rights attach to the classification of the risk such individuals present on their release from confinement.

Notwithstanding our decision today on the petitioners’ constitutional claims, we express a certain discomfort with the seeming unfairness of a process of classification in which the offenders have little involvement. We note such offenders are not without avenues of relief if the Department’s classification recommendation or the local law enforcement agency decision is arbitrary or capricious. These individuals may secure judicial review by writ of certiorari for arbitrary or capricious classification. RCW 7.16.040; Const, art. IV, §§ 4, 6. Additionally, the Department may be wise to afford these individuals notice and an opportunity to be heard as to the ESRC decision to avoid the potential for erroneous decision making.

We affirm the decisions of the Court of Appeals in these cases dismissing petitioners’ PRPs.

Guy, C.J., and Smith, Madsen, Ireland, and Bridge, JJ., concur.

1 Both of these statutes are part of the 1990 community protection act, Laws of 1990, ch. 3.

2 An offender may get his risk classification changed by petitioning the superior court of conviction to relieve him of the duty to register. RCW 9A.44.140(3)-(4). After spending at least “ten consecutive years in the community,” an offender may also petition the superior court for relief from the duty to register.

3 See, e.g., Klos v. Haskell, 48 F.3d 81, 82 (2d Cir. 1995) (claiming liberty interest in right to participate in “shock program”—a type of boot camp for inmates); Segal v. Biller, 39 F.3d 1188 (9th Cir. 1994) (claiming liberty interest in a waiver of the travel limit imposed on prison furloughs); Burgin v. Nix, 899 F.2d 733, 735 (8th Cir. 1990) (claiming liberty interest in receiving a tray lunch rather than a sack lunch); Spruytte v. Walters, 753 F.2d 498, 506-08 (6th Cir. 1985) (finding liberty interest in receiving a paperback dictionary due to a rule that states a prisoner “ ‘may receive any book.. . which does not present a threat to the order or security of the institution’ ” (quoting Administrative Rule 791.6603)); Lyon v. Farrier, 727 F.2d 766, 768-69 (8th Cir. 1984) (claiming liberty interest in freedom from transfer to a smaller cell without electrical outlets for televisions and liberty interest in a prison job); United States v. Michigan, 680 F. Supp. 270, 277 (W.D. Mich. 1988) (finding liberty interest in not being placed on “food loaf” diet).

4 In light of our disposition of this case, we deny petitioners’ motions for stay.