Cummings, In re

• Decision Date: 18 February 1982
• Docket Number: Cr. N
• Court: California Supreme Court
• Parties: , 640 P.2d 1101, 29 A.L.R.4th 1207 In re Ray CUMMINGS on Habeas Corpus. o. 21978.

Page 826

180 Cal.Rptr. 826

30 Cal.3d 870, 640 P.2d 1101, 29 A.L.R.4th 1207

In re Ray CUMMINGS on Habeas Corpus.

Cr. No. 21978.

Supreme Court of California,

In Bank.

Feb. 18, 1982.

Rehearing Denied April 15, 1982.

Michael Satris, Donald Specter, San Quentin, under appointments by the Supreme Court, and Kelley Burg, Berkeley, for petitioner.

Quin Denvir, State Public Defender, and Harvey R. Zall, Deputy State Public Defender, as amici curiae on behalf of petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien and William D. Stein, Asst. Attys. Gen., Gloria F. DeHart, John T. Murphy and Karl S. Mayer, Deputy Attys. Gen., for respondent.

RICHARDSON, Justice.

The Department of Corrections (Department) has adopted regulations which allow certain prisoners overnight visitation with their "immediate family." Such visitation usually occurs in a guarded mobile home, extends for two or three days, and includes the exercise of conjugal rights. Petitioner challenges as arbitrary and unreasonable the Department's eligibility restrictions but we uphold its action.

The regulations at issue direct prison wardens and superintendents to adopt a family visitation plan available "to as many inmates as is possible commensurate with institution security .... Each institution will provide all necessary accommodations ... to permit extended and overnight visitation between eligible inmates and members of the inmate's immediate family ...." (Cal.Admin.Code, tit. 15, § 3174.) "Immediate family members" are defined as including "legal spouse," and "natural" or "adoptive" children, as well as parents grandparents, grandchildren, brothers and sisters, and other specified classes of persons related to the inmate by blood, marriage or adoption. (Ibid.) Finally, the regulations provide that "Persons with only a common-law relationship to the inmate will not be recognized as immediate family members for the purpose of family visiting." (Ibid.)

Petitioner, a San Quentin inmate serving a sentence of life imprisonment for first degree murder, was denied family visitation with Susan C. and her daughter, S. According to petitioner, he had lived in a "family relationship" with Susan and S. from 1971 until his arrest in 1978. He admits that he is not legally married to Susan, that S. is not his natural or adopted child, and that he is married to another woman and Susan is married to another man. Nevertheless, he insists that he should have been permitted family visitation with Susan and S. because of "a bona fide long-standing family relationship with [them] ... based on the long-standing and mutual emotional, psychological and financial commitment they have to each other." According to petitioner, his relationship with them has continued since his incarceration, through the exchange of letters and daytime prison visits.

When prison officials denied petitioner family visitation, petitioner brought the present habeas action seeking to invalidate the Department's regulations and to compel prison officials to extend to him these privileges.

Penal Code section 2600, enacted in 1975, provides that a prisoner may "... be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public." Among the "rights" to which prisoners are ordinarily entitled is the right "To have personal visits; provided that the department may provide such restrictions as are necessary for the reasonable security of the institution." (Pen.Code, § 2601, subd. (d).)

We have previously acknowledged, however, that the foregoing provisions cannot " 'be construed as a straitjacket limiting the ability of the prison authorities to deal with institutional realities.' [Citation.] Valid and compelling institutional considerations may necessitate certain limited inroads upon the exercise of the prisoner's civil rights." (In re van Geldern (1971) 5 Cal.3d 832, 837, 97 Cal.Rptr. 698, 489 P.2d 578.) As we recently observed, restrictions upon an inmate's associational rights are an inevitable product of his confinement: "Manifestly, one of the basic rights enjoyed by all free citizens, and necessarily denied to prisoners, is the right of association. By the very nature of imprisonment prisoners are separated from their families, their friends, and their business or social associates .... No legislative intent indicates, and no case law holds, that such restrictions on the right of association are invalid." (In re Price (1979) 25 Cal.3d 448, 452-453, 158 Cal.Rptr. 873, 600 P.2d 1330 italics added [no right to hold union meetings in prison].)

In this regard, the right-of-privacy cases relied on by petitioner (e.g., Committee to Defend Reproductive Rights v. Meyer (1981) 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779, and City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436) are inapposite, for they concern the personal or privacy rights of nonprisoners. Rights of privacy, like associational rights, are necessarily and substantially abridged in a prison setting.

As In re Price, supra, further holds, we must attempt to determine whether the challenged regulation before us is "reasonable" and consistent with legitimate state interests. (25 Cal.3d 453, 158 Cal.Rptr. 873, 600 P.2d 1330.) We conclude that it is. Here, the department's regulation excludes family visitation by persons having only a "common-law relationship" with the inmate, that is, persons unrelated to him by marriage, blood or adoption. The program's social purpose of preserving family unity would not be served by encouraging inmates' overnight visits with those who are not in his family. Contrary to petitioner's contention, the regulation is not "arbitrary" but reasonable. The prolonged personal and intimate contact between prisoners is limited to those persons with whom the prisoner has a readily provable, legally cognizable, traditional family relationship. If, as is clear, prison officials may ban overnight visits with inmates altogether, then certainly they may limit those visits to persons with whom the inmate has a bona fide relationship established through blood, marriage or adoption. To recognize other "alternative" relationships as justifying "family" visitation is an invitation into semantic quicksand. Moreover, it would encourage subterfuge.

The opportunities for abuse of the family visitation privilege are obvious, and repeated abuses might well lead authorities to terminate the entire family visitation program, which is within their power. Such a consequence would represent a sad loss both to inmates and family members, bonded by legally recognized ties, who benefit from a generally laudable and humane attempt to preserve those ties during incarceration.

In the present case, for example, petitioner seeks overnight visitation with persons with whom he assertedly has had "a bona fide long-standing family relationship." Yet without the benefit of marriage, birth or adoption certificates, how are prison authorities to verify the truth of petitioner's assertion? Certainly, a prolonged administrative hearing should not be required in each of these cases, and yet it is equally evident that prison authorities need not accept as true petitioner's characterization of the relationship.

As we see it, there are two families here: Petitioner is in one. Susan and her daugher are in another. That may change, but it hasn't yet. Until it does, the relationship between petitioner and Susan is not that of a "family." It is something else.

Beyond the foregoing practical considerations, we discern no valid public policy requiring California's taxpayers to provide overnight housing accommodations and security supervision for a prison inmate with his or her paramour. In our view, such a program would represent both social folly and fiscal extravagance at a time when penal funds are much needed for more critical purposes; certainly, such a plan is not legally compelled.

Finally, we note from the record that petitioner is serving a life sentence for first degree murder. Susan herself has a criminal record. The potential volatility of such a situation is obvious.

Thus, we conclude that in the absence of a valid, provable family relationship based upon blood, marriage or adoption, prison officials are fully justified in denying extended overnight visitation.

The order to show cause previously issued herein is discharged and the petition for habeas corpus is denied.

MOSK and KAUS, JJ., concur.

BIRD, Chief Justice, concurring.

I concur in the result reached in the opinion by my colleague, Justice Richardson. However, I cannot join his reasoning.

A prisoner in California can be deprived of only those rights that are necessary to protect the safety of the prison or the public. (Pen.Code, § 2600.) In keeping with this statutory guarantee, the California Administrative Code commands that each institution extend overnight visitation "to as many inmates as is possible commensurate with institution security." (Cal.Admin.Code, tit. 15, § 3174.)

The definition of a "family" in our society has undergone some change in recent years. It has come to mean something far broader than only those individuals who are united by formal marriage. Many individuals are united by ties as strong as those that unite traditional blood, marriage and adoptive families.

However, the very diversity of the groups of people now commonly referred to as "families" highlights the difficulty that would be created if the prison authorities were required to grant family visits to prisoners who were not married. The prison authorities do have a security interest in prohibiting visits by transients, whose ties to the prisoners may be fleeting or tenuous at best. In the absence of a marriage certificate or a valid out-of-state common...