I’ve been holding off writing a journal entry until I heard back about my potential transfer to OCC but I decided not to wait any longer because this past Wed. I was moved from A gallery to C.

I was coming back from Buddhist meditation around 10 AM on Wed. and as I walked onto the gallery Gilbert, the unpleasant CO, called my name. Here’s how I reacted to each word in the sentence she said. When she called my name I immediately tensed up because you never want to be the object of her attention. Then she said “do you want to move…” and I got excited thinking that maybe my transfer to OCC had been approved and I was being transferred. She continued with “…to C gallery…” and I was disappointed that it wasn’t OCC and I started to think that I was pretty settled into A gallery. Then she finished with “…with your old cellie, Hauser?” Well, that changed everything. If I could move back in with Jeff, whom I had lived with for over 2 years on F gallery, AND I got to move away from Gilbert then why not? Over the span of that single sentence from her I went from tense and ready to lash out, to excited and hopeful, to disappointed, and finally to happy. Emotional whiplash from the rollercoaster ride of talking to Gilber. LOL

I had settled into A gallery pretty well and I got along with my cellie, Cletus (Cornelious), just fine but I couldn’t turn down the chance to get away from Gilbert plus I figured Jeff would let me have the lower bunk again (which he offered without my even asking) so I would be out of the air blast from the vent. The only partial down side to being on C is that it is very quiet. That’s typically a pro but it also means that there isn’t much going on here, not as many people to chat with, like McKenzie or Woolery (my old cellie from D&E). So far though it has been an improvement.

The move does make it a bit more difficult for me to work with McKenzie to refine my law suit over NDCS’s misinterpretation of 191 good time. He helped me finalize my arguments but after reading some of the petitions for declaratory judgement against the state that failed I realized that even with rock solid arguments I could still loose because the state would argue that the court didn’t have jurisdiction. The state has what is called sovereign immunity from law suits unless there is some specific legislation that makes an exception. The law that allows you to sue over an agency of the executive branch’s implementation of legislation, the Administrative Procedures Act (APA), doesn’t allow you to simply challenge the agency’s interpretation of statute though. You can only challenge a rule if it violates the US or state constitution or they didn’t follow the process laid out in the APA. There apparently is no way to just challenge an agency’s misinterpretation of the intent of a statute. So for the court to have jurisdiction I have to make a good argument as to why their rule violates the constitution and/or how they didn’t follow the process in the APA.

These sorts of legal traps are why I had really hoped to have a lawyer representing the case, especially one with experience suing the state. Unfortunately, the ACLU and the Appleseed foundation, both of which have plenty of experience suing the state, each turned me down. My letter and sample filing didn’t even make it past the legal aid at the ACLU who sent me a form letter saying we’re sorry but you’ll be included in the class action they’re doing, which isn’t about 191 good time though. She even explained that I should use the grievance process in here, which I had clearly stated in my draft petition that I had tried, so it’s clear she never read it. *sigh* I am still hopeful that the lawyer that former state senator Council recommended, Anthony Thomas, will be interested in the case but unfortunately he hasn’t responded to my dad’s emails. Once my parents are back from their trip at the end of this month I will ask him to mail a copy to his office.

If we have legal representation then they will (hopefully) know to watch out of the legal traps like jurisdiction AND they can file a joint suit on behalf of several of us even before certifying as a class action. The reason I really want that is that, with McKenzie’s help, I have about 10 guys finishing the grievance process and ready to join the suit. One of them is even my “unicorn.” By that I mean he is someone who’s 191 good time has moved his final discharge date (TRD) to sooner than his parole eligibility date (PED); he has what I call an inverted sentence. I would like to have him join the suit so that the judge can see a real life example an inverted sentence, not just the hypothetical that I argue in my petition. I’m also making a public records request to find out how many people total have earned 191 good time and have a TRD that is sooner than their PED. Even without a joint suit I will at least be able to include that statistic. *smile*

I was also contacted through my dad by Paul Feilmann, a prison reformer who is doing a vigil on the governor’s lawn demanding change. He read about the art show that Jeri and I put on and asked if I could get some artists in here to make banners for his vigil. You would think that any artist in here who could help someone trying to change the prison system would jump at the chance to help, but apparently that’s not the case. People are either inherently lazy or selfish and don’t seem to like to work on causes that are bigger than just them. Only ONE person has actually done a banner. Thank you Owen! *sigh* Maybe now that I’m in C/D gallery I can get some of the artists here to do something. We’ll see.

I’ll keep this journal entry short as I’m running out of characters and I expect to write another one soon when I find out about my transfer to OCC. *crosses his fingers*