Alcala, In re

Decision Date23 July 1990
Docket NumberNo. A043385,A043385
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re Rodney ALCALA on Habeas Corpus.

John K. Van de Kamp, Atty. Gen., Morris Lenk and John G. Donhoff, Jr., Deputy Attys. Gen., San Francisco, for appellant.

Donald Specter, under appointment by the Court of Appeal, Prison Law Office, San Quentin, for respondent.

BARRY-DEAL, Associate Justice.

Daniel Vasquez, the Warden of San Quentin Prison, appeals from an order enjoining enforcement of restrictions on the right of prisoners to possess and wear certain items of civilian clothing. We hold that the right to wear clothing of one's choice is a protected liberty interest under the substantive due process guarantees of the Fourteenth Amendment. We conclude, however, that the restrictions are not an unconstitutional infringement on the right of prisoners to self-expression through clothing choice, nor do they violate the prisoners' statutory rights under Penal Code sections 2600 and 2601. 1 Accordingly, we vacate the order.

I. Background

A. Statutory and Administrative. The Director of the Department of Corrections is vested with the supervision management, and control of the state prisons (§ 5054) and is authorized to prescribe and amend rules and regulations for the administration of those institutions (§ 5058). Such rules and regulations must be promulgated according to the Administrative Procedure Act (Gov.Code, § 11340 et seq.; Faunce v. Denton (1985) 167 Cal.App.3d 191, 196, 213 Cal.Rptr. 122) and are set out in division 3 of title 15 of the California Code of Regulations. 2

Subject to the orders and policies established by the department, each warden has the duty to supervise the government, discipline, and policy of the prison, and to enforce all orders and regulations. (§ 2079.) The procedural detail necessary to implement the rules and regulations of the director is not always included in each regulation but is found in the appropriate departmental procedural manuals and in the operational plans and procedures of the respective institutions. (Cal.Code Regs., tit. 15, div. 3, ch. 1, preface.)

Under the general policy of the Department of Corrections, the warden is directed to establish a list of personal property items and the maximum amount of such items an inmate may have in his or her possession in the institution. (Cal.Code Regs., tit. 15, § 3190, subd. (a).) In addition to state-issued items, an inmate may have personal property items that present no threat to institution security or the safety of persons and that do not exceed a certain cubic space. (Cal.Code Regs., tit. 15, § 3190, subds. (a), (b).) On clothing, the regulations provide that "(a) Inmates may possess only those items of state clothing that have been issued to them or specifically authorized for their possession. [p ] (b) Inmates may possess only those items of personal clothing authorized by the warden or superintendent and as property acquired in accordance with institution procedures." (Cal.Code Regs., tit. 15, § 3032.)

Thus, under the regulations Warden Vasquez was authorized to promulgate rules relating to the items of personal clothing each inmate was allowed to possess and wear unless those rules exceeded his statutory authority or infringed upon a constitutional right of the inmates. (See Ford Dealers Assn. v. Department of Motor Vehicles (1982) 32 Cal.3d 347, 356, 185 Cal.Rptr. 453, 650 P.2d 328; Stoneham v. Rushen (1984) 156 Cal.App.3d 302, 308, 203 Cal.Rptr. 20.)

B. Procedural History of This Case. The Prison Law Office representing the prisoners has been engaged for some time in litigation and settlement negotiations with the warden over the rules relating to the inmates' possession and storage of personal property in prison. An agreement on the permissible property was reached, and a hearing on the reasonableness of the settlement and on the allowable storage space was scheduled for September 10, 1986. 3 In the interim, a new conflict developed when the prison authorities, without notice or an opportunity for comment, issued a memorandum on July 30, 1986 (hereafter the July 30 memorandum), restricting the items of civilian clothing that the prisoners in the main institution were entitled to possess and wear.

Before these deletions from the approved list of clothing were issued, the inmates had for a number of years been allowed to wear some civilian clothing in restricted areas. All prisoners, however, were required to wear blue jeans, and no one else within the institution was permitted to wear them.

The July 30 memorandum recited that recently civilian clothing was used to perpetrate or facilitate a number of escapes and escape attempts. It further recited that to insure compliance with the Department of Corrections mandate that security remain the foremost consideration, institution procedure No. 215 had been reviewed and revised regarding personal civilian clothing for inmates in the main institution. The July 30 memorandum then stated that for security reasons the following seven items of personal clothing were being deleted from the approved list: shirts, sweat shirts, sweat pants, baseball caps, colored T-shirts, windbreakers, and sweaters. Inmates were given the month of August to dispose of these items; items not disposed of by inmates would be confiscated in the month of September.

On August 14, 1986, in response to the July 30 memorandum, Rodney Alcala (petitioner), represented by the Prison Law Office, filed an application on behalf of himself and all others similarly situated for further preliminary relief (petition for writ of habeas corpus) seeking judicial invalidation of the warden's deletions from the approved list of clothing on the ground that they violated the prisoners' constitutional and statutory rights to personal expression through clothing choice. 4 He did not challenge the long-standing rule that all San Quentin inmates must wear blue jeans. The same day, petitioner obtained an ex parte temporary restraining order enjoining enforcement of the restrictions pending a hearing on whether they violated the prisoners' rights.

The warden filed opposition (return to the order to show cause), and petitioner filed a declaration and memorandum in reply (traverse) to that pleading. After a three-day hearing in September 1986, the court issued a tentative decision on January 20, 1987, finding that the warden, in his efforts to manage the threat to security, failed to show that he had explored less intrusive alternatives and found them ineffective. It directed petitioner to prepare a proposed statement of decision. More than a year later, on June 17, 1988, the court adopted the statement of decision submitted by petitioner and issued its order enjoining enforcement of the July 30 memorandum. This timely appeal by the warden followed. (See § 1506.)

II. The Hearing

At the three-day hearing in September 1986, the court heard, in addition to the warden's evidence, the testimony of Joseph Cannon, a correctional expert called by petitioner, and that of two experts and several correctional officers called by the warden.

The warden's testimony, amplified by his declaration under penalty of perjury executed in August 1986, showed the following facts. At the time of the declaration, San Quentin was a maximum security facility housing approximately 2,500 level IV inmates. 5 The general population consisted of about 800 inmates, about 50 percent of whom were serving life sentences. The rest of the population, about 1,750 inmates, was housed in maximum security lock-up facilities. Warden Vasquez believed this was the largest lock-up facility in the country. 6

Warden Vasquez stated that between January 1985 and August 1986 there had been ten incidents of escape or serious threat of escape. Eight of the prisoners involved were imprisoned for first degree murder, and two for sexual offenses against women or children. Nine of the ten prisoners involved in these incidents were serving life sentences; the other was serving a sentence of fifty-two years. The warden stated, "In nine of the ten incidents it appears that civilian clothing was used to facilitate the escape or attempted escape."

The warden attached to his declaration certified copies of reports on the escapes and attempted escapes. The reports showed the following. On July 25, 1986, inmates Alve, Chavez, and Rodriguez were caught while attempting to climb the wall surrounding the industries area of San Quentin. Each was dressed in civilian clothing.

On June 10, 1986, inmate Adams escaped. He had worked earlier that day in the education department offices. Approximately 30 pieces of civilian clothing were found during the subsequent search of the Education Building. Also found were a wig, women's trousers, and cosmetics. It was suspected that clothing from this area was used to facilitate Adams's escape.

On December 10, 1985, inmate Price apparently attempted to escape by hiding in the electrical shop. There is no indication that he was wearing civilian clothes.

On October 31, 1985, inmates Thomas and Reach were caught while hiding in a pile of laundry in the laundry area. They had with them a bag containing a large number of items of civilian clothing.

On May 17, 1985, inmate Sanchez escaped. He had been seen shortly after noon dressed in civilian clothing, which was unusual for him. An investigation led to the conclusion that he had left San Quentin "through the Front Count Gate, dressed in a rust colored long sleeve velour shirt and light blue denim pants." He had attempted a similar escape 11 months earlier from Vacaville.

On January 17, 1985, a search of an air vent on the roof of a cell block revealed articles of civilian clothing to which rubber silicone had been applied, apparently to waterproof them. Investigation revealed fingerprints and other evidence connecting inmates Dow and Garcia to...

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