American Friends Service Committee v. Procunier

• Decision Date: 03 July 1973
• Citation: 109 Cal.Rptr. 22,33 Cal.App.3d 252
• Court: California Court of Appeals Court of Appeals
• Parties: AMERICAN FRIENDS SERVICE COMMITTEE et al., Plaintiffs and Respondents, v. R. K. PROCUNIER, Director of Corrections, State of California, et al., Defendants and Appellants. Civ. 13689.

Page 22

109 Cal.Rptr. 22

33 Cal.App.3d 252

AMERICAN FRIENDS SERVICE COMMITTEE et al., Plaintiffs and Respondents, v. R. K. PROCUNIER, Director of Corrections, State of California, et al., Defendants and Appellants.

Civ. 13689.

Court of Appeal, Third District, California.

July 3, 1973.

Hearing Denied Sept. 19, 1973.

Peter E. Sitkin, J. Anthony Kline and others, Public Advocates, Inc., San Francisco, for plaintiffs and respondents.

Evelle J. Younger, Atty. Gen., by Nelson Kempsky and Arnold Overoye, Deputy Attys. Gen., Sacramento, for defendants and appellants.

RICHARDSON, Presiding Justice.

Petitioners (herein denominated 'plaintiffs'), a group of nonprofit corporations and a citizen taxpayer, filed an action in the superior court against respondents (herein denominated 'defendants'), Director of Corrections (hereinafter 'Director') and the chairman, vice chairman and members of the California Adult Authority (hereinafter 'Authority') wherein plaintiffs sought, and obtained, a writ of mandate directing defendants, in the formulation of their rules and regulations, to comply with the provisions of the California Administrative Procedure Act (hereinafter 'APA'). (Gov.Code, § 11370 et seq.) The order and judgment of the trial court in granting the peremptory writ of mandate decreed defendants' rules and regulations invalid and required their repromulgation under APA within two months.

The judgment was subsequently amended to require immediate execution of that part of the judgment requiring the filing of defendants' rules and regulations with the Secretary of State. A further clarifying order directed new regulations promulgated under APA to be in the form necessary for publication in the Administrative Code and Register. This appeal is from the judgment and each of the orders.

We have temporarily stayed the trial court's judgment and orders above described.

Defendants contend on appeal, first, that plaintiffs lack standing to sue, which contention we reject, and, secondly, that the trial court erred in its judgment and subsequent orders to the effect that APA applies to the rules and regulations of defendants, which contention we sustain.

STANDING

Plaintiffs are four nonprofit corporations, each of them active in, and having important, valid, helpful and legitimate interests in, the welfare of prison inmates, prison reform and assistance to prison inmates and parolees and their families in various beneficial ways. American Friends Service Committee provides aid and assistance to prisoners and parolees. Connections Guidance Center is composed of 'relatives and friends' of inmates or parolees whose purpose is to aid convicts, exconvicts, parolees and their families. Brotherhood-in-Motion comprises 'former inmates and parolees' and relatives and friends engaged in general assistance to prisoners and parolees. Committee For Prisoner Humanity and Justice has broad purposes of public information and education of prisoner conditions, the development of proper prison standards and assistance to prisoners, parolees and their families. The individual plaintiff is a citizen, taxpayer and Legal Director of The American Civil Liberties Union who represents clients affected by the Authority and the Director.

We first consider the threshold issue of 'standing to sue.' Defendants predicate their contention of lack of standing on the argument that none of plaintiffs is an 'interested person' as that term is used in Government Code section 11440. The rule is well established that when a regulation is challenged for lack of conformity, or is invalid for some other reasons, the person so challenging must be a person who himself is subject to the regulation or affected by it. (Chas. L. Harney, Inc. v. Contractors' Board (1952) 39 Cal.2d 561, 564, 247 P.2d 913; Sperry & Hutchinson Co. v. Cal. State Bd. of Pharmacy (1966) 241 Cal.App.2d 229, 232--233, 50 Cal.Rptr. 489; Associated Boat Industries v. Marshall (1951) 104 Cal.App.2d 21, 23, 230 P.2d 379.)

The foregoing contention, however, has no bearing on the matter before us, for this is not a case for declaratory relief as provided in Government Code section 11440 to challenge a regulation under APA. Rather, it is a petition for mandate alleging that a government department is not complying with the law and seeking a court order compelling such compliance.

Petitioner in a mandamus proceeding must demonstrate that the writ is necessary to enforce or protect a specific legal right that is clear, present, certain and substantial. (Parker v. Bowron (1953) 40 Cal.2d 344, 254 P.2d 6; Monarch Cablevision, Inc. v. City Council (1966) 239 Cal.App.2d 206, 48 Cal.Rptr. 550; 5 Witkin, Cal. Procedure (2d ed.) p. 3841.) Where, however, the question is one of public, as opposed to private, interest, and petitioner seeks performance of a public duty, it is said the foregoing requirements of petitioner's rights and respondent's duty have been 'relaxed.' (5 Witkin, supra, p. 3847; California Civil Writs (Cont. Ed. Bar) p. 73; Fuller v. San Bernardino Valley Mun. Water Dist. (1966) 242 Cal.App.2d 52, 51 Cal.Rptr. 120.) The rule was enunciated sometime ago by the Supreme Court, within the context of a public welfare We view the object of the mandamus herein sought as the 'enforcement of a public duty' within the meaning of Board of Social Welfare v. County of Los Angeles, supra (27 Cal.2d 98, 162 P.2d 627).

issue, in Board of Social Welfare v. County of Los Angeles (1945) 27 Cal.2d 98, 100--101, 162 P.2d 627, 628, in the following form: "(W) here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced.' . . .' We have had occasion recently to apply the foregoing rule in a similar public welfare connection. (Diaz v. Quitoriano (1969) 268 Cal.App.2d 807, 811, 74 Cal.Rptr. 358.) The Director has acknowledged the obvious continuing public concern in correctional facilities of this state.

Plaintiffs have standing to sue.

APPLICATION OF THE ACT

The central issue presented is whether APA applies to the rules and regulations of the Department, the Director and the Authority.

The rules and regulations of the Authority, known as Resolutions and Policy Statements, govern prisoners on parole, restoration of certain civil rights to inmates and parolees, and the grounds for suspension, cancellation and revocation of parole.

The rules and regulations of the Department are promulgated by the Director and are distinguished from the institutional rules enacted by each warden of the particular institution affected. The Department has classified its rules and regulations in five general categories: (1) Inmate rules, including food, clothing, education and rehabilitative opportunities, work training, behavioral standards and the like; (2) inmate privileges, including correspondence, use of library, handling of legal documents and manuscripts, use of tobacco and visiting privileges (3) inmate activities, including religious participation, entertainment, athletic programs, inmate committees and publications; and (4) general institutional regulations, including public information, community relations, custody and security, escapes, inmate discipline and medical services and (5) personnel matters.

We examine several relevant provisions of the Penal Code establishing the affected agencies and trace their relationships. We also view APA and certain pertinent history of both the code and APA.

The Department was established in 1944 by virtue of the legislative adoption of title 7 of part III of Penal Code section 5000 and following. The state constitutional roots of the authority for such enactment are found in article X, section 1. The Authority is one of the four agencies in the Department. (Pen.Code, § 5001.) The Department is vested with a broad spectrum of powers and duties over the penal institutions of the state (Pen.Code, §§ 5002, 5003), and its powers are exercised by the Director, save where otherwise given to the Authority or the California Women's Board of Terms and Parole. (Pen.Code, § 5055.) The Authority advises the Director on 'general and specific policies and procedures relating' to his 'duties and functions,' and a reciprocal advisory power is possessed by the Director vis-a-vis the Authority. (Pen.Code, § 5003.5.) A similar relationship is established between the Director and The California Women's Board of Terms and Parole. (Pen.Code, § 6043.) While '(i)t is the intention of the Legislature' that the Authority and Director cooperate in the establishment of classification, transfer, and disciplinary policies, and shall meet periodically for that purpose, the Director 'shall have the Final right' to determine the policies in these areas. (Pen.Code, § 5003.5.) (Emphasis added.) He is a department head (Pen.Code, § 5053) and is vested with '(t)he supervision, management and control of the State prisons,' and is responsible 'for the care, custody, treatment training, discipline and employment of persons confined therein . . ..' (Pen.Code, § 5054.) He may 'prescribe rules and regulations for the administration of the prisons and may change them At his pleasure.' (Pen.Code, § 5058.) (Emphasis added.) This is conceded by plaintiffs to be an extremely broad grant of power.

Two additional provisions of the Penal Code require mention. Section 2080 requires that a copy of the rules and regulations affecting the duties and obligations of prisoners shall be furnished to them. By virtue of section 6025.5 all rules and regulations of the defendants must be filed with the Board of Corrections.

Specific provisions relate to named prisons. The Director 'shall' make rules and regulations for the government of the named institution and the...