Alfaro v. Terhune

• Decision Date: 16 May 2002
• Docket Number: No. C034286.,C034286.
• Citation: 98 Cal.App.4th 492,120 Cal.Rptr.2d 197
• Parties: Maria ALFARO et al., Plaintiffs and Appellants, v. C.A. TERHUNE, as Director, etc., et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

120 Cal.Rptr.2d 197

98 Cal.App.4th 492

Maria ALFARO et al., Plaintiffs and Appellants, v. C.A. TERHUNE, as Director, etc., et al., Defendants and Appellants.

No. C034286.

Court of Appeal, Third District.

May 16, 2002.

Rehearing Denied June 12, 2002.

Review Denied August 21, 2002.

Kathryn K. Andrews, John R. Grele and Susan Ten Kwan under appointments by the Court of Appeal; Morrison & Foerster, Matthew I. Kreeger, Frederick S. Chung, San Francisco, and Melissa L. Basch, for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Paul D. Gifford and Ronald A. Bass, Senior Assistant Attorneys General, Allen R. Crown and Stan M. Helfman, Supervising Deputy Attorneys General, David M. Verhey and Enid Camps, Deputy Attorneys General, for Defendants and Appellants.

SCOTLAND, P.J.

Eight women who have been sentenced to death in state criminal proceedings (hereafter plaintiffs) challenge the implementation of the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (hereafter the Act). (Pen.Code, § 295 et seq.; further section references are to this code unless otherwise specified.) Among other things, the Act states that any person who is convicted of a specified crime must "provide two specimens of blood, a saliva sample, right thumbprints, and a full palm print impression of each hand for law enforcement identification analysis." (§ 296, subd. (a)(1).) The Act further provides that the California Department of Justice shall (1) serve as a repository for those items, (2) perform a deoxyribonucleic acid (DNA) analysis and any other forensic identification of them, and (3) "store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records" (§ 295.1, subds.(a), (c)) for use as an "effective law enforcement tool" in the "expeditious detection and prosecution of individuals responsible for sex offenses and other violent crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children." (§ 295, subds.(b)(3), (c).) The defendants in this action are state officials charged with implementing the Act.

Plaintiffs claim that, as applied to prisoners under sentence of death, the Act violates the constitutional prohibition against unreasonable searches and seizures and violates their privacy rights because "one of the key purposes justifying the [Act]—the deterrence of future crimes—is inapplicable" to those prisoners. In the alternative, they assert that the Act cannot be implemented because defendants have not adopted adequate regulations in compliance with the Administrative Procedure Act.

The trial court rejected the constitutional challenge but concluded that defendants had failed to adopt administrative regulations sufficient to implement the Act. Consequently, the court issued a permanent injunction prohibiting defendants from implementing the Act as to plaintiffs.

Defendants appeal from the issuance of injunctive relief. Plaintiffs cross-appeal from the rejection of their constitutional challenge. For reasons that follow, we conclude the trial court correctly rejected plaintiffs' constitutional challenge but erred in enjoining implementation of the Act. As we will explain, the terms of the Act itself are sufficiently precise that those who are subject to it can reasonably understand what is required, and the agencies charged with its execution can reasonably understand what they must do. Because its terms are not vague and indefinite, the Act can be implemented without the need for administrative regulations. Accordingly, we shall reverse the judgment in part and remand the matter to the trial court with directions to enter judgment in favor of defendants.

BACKGROUND

The state's DNA and Forensic Identification Data Base and Data Bank program had its genesis in former section 290.2, enacted in 1983. (Stats. 1983, ch. 700, § 1, pp. 2680-2681.) As originally enacted, that provision was relatively brief and was limited in application to certain sex offenders. By the time of the last operative version of former section 290.2, the provision had been expanded beyond sexual offenses to include persons convicted of murder or of various felony assaults or batteries. (Stats.1996, ch. 917, § 2.) It also had been amended to include a far more detailed methodology for the collection and use of samples and impressions. (Ibid)

Prior to 1997, former section 290.2 applied to persons who were to be discharged, paroled, granted probation, or otherwise released from custody. (Stats. 1994, 1st Ex.Sess. 1993, ch. 42, § 1, p. 8735.) At that time, the statute did not apply to persons under a death sentence, since they were not to be released from custody. Effective January 1, 1997, the statute was amended to apply to persons convicted of enumerated offenses, including murder, regardless of release from custody. (Stats.1996, ch. 917, § 2.) In light of this amendment, the Department of Corrections issued Administrative Bulletin 97/3, informing staff that inmates sentenced to death or to life without the possibility of parole were not exempt from former section 290.2, and directing staff to begin collecting blood specimens, saliva samples, and palm prints and fingerprints from those inmates.

In response, plaintiffs filed a complaint seeking declaratory and injunctive relief. They alleged that former section 290.2 was unconstitutional and that defendants' administrative bulletin had been issued without complying with the state Administrative Procedure Act (APA). (Gov.Code, § 11340 et seq., see id. § 11370.)

Pending resolution of the merits of the litigation, the trial court issued a preliminary injunction, prohibiting defendants "from extracting and collecting samples of blood and saliva from the named plaintiffs herein, as well as all inmates confined as a result of a sentence of death (condemned inmates) within the California Department of Corrections, or imposing disciplinary action against any condemned inmates for refusal to consent to collection of body fluids."

While this lawsuit was pending, the Legislature repealed former section 290.2 and replaced it with the Act. In response, plaintiffs filed a third amended complaint to challenge the Act, alleging (1) the collection of body fluids for law enforcement purposes is an unreasonable search and seizure in violation of the constitutional rights of inmates under sentences of death who, under their current sentences, cannot expect to be released from prison; (2) Administrative Bulletin 97/3, relating to former section 290.2, was issued without compliance with the APA¹; and (3) no valid administrative regulations have been promulgated regarding implementation of the Act.

Defendants demurred to the third amended complaint, and the trial court sustained the demurrer without leave to amend as to the cause of action alleging the statutory scheme was unconstitutional. In doing so, the court construed the cause of action as a facial challenge to the statutory scheme, and concluded the scheme is facially valid. Plaintiffs moved for reconsideration asserting, among other things, that they also are making an as-applied challenge to the scheme. In this respect, they pointed out they are challenging the statutory scheme solely with respect to inmates under a sentence of death. The court denied reconsideration after concluding the challenge was facial despite the fact plaintiffs sought only partial invalidation.

The trial court subsequently denied defendants' motion for summary judgment on the remaining causes of action. In doing so, the court concluded the statutory scheme "cannot be implemented without fleshing out by means of regulation." The court also denied defendants' request to dissolve the preliminary injunction based upon the fact that former section 290.2 was replaced with the Act. The court said (1) the matter could go to trial on the pleadings and with judicial notice that there are no regulations, and (2) the court would issue a permanent injunction prohibiting defendants from implementing the Act as to plaintiffs without having adopted necessary regulations.

In response to the trial court's statements, the Department of Corrections drafted emergency regulations and submitted them to the Office of Administrative Law (OAL). The regulations were approved by the OAL on an emergency basis and have since become final. They are found in title 15, California Code of Regulations, sections 3025, 3315(a)(3)(S), 3323(g)(6), 3327(a)(4), and 3901.19.2(a)(8).

The matter came on for trial after the Department of Corrections had submitted the emergency regulations to the OAL, but before they were approved on an emergency basis. The court excluded the proposed regulations from evidence and orally announced a tentative decision to issue a permanent injunction. Thereafter, the regulations were approved by the OAL, and defendants moved to reopen. The court took judicial notice of the emergency regulations, said they are insufficient, and affirmed its tentative decision. The court then issued a final judgment and permanent injunction.

DISCUSSION

I

Defendants' appeal begins with a procedural attack on the judgment. Characterizing it as a determination that defendants are obligated to adopt administrative regulations before enforcing the Act, they assert that the judgment in effect compels them to adopt such regulations. Thus, defendants argue, the trial court exceeded its jurisdiction by granting injunctive relief when the only remedy would be by writ of mandate.

The appropriate form of proceeding and the available remedies, if any, are dependent upon the particular claims of the plaintiffs and the nature of the relief they seek. (See Silverman v. Greenberg (1938) 12 Cal.2d 252, 254, 83 P.2d 293.) For example, a petition for a writ of mandate is appropriate to compel the...