Hillery v. Rushen

• Decision Date: 25 November 1983
• Docket Number: No. 82-4609,82-4609
• Citation: 720 F.2d 1132
• Parties: Booker T. HILLERY, Jr., J.R. Butts, David Middleton, Glenn Bailey, Plaintiffs- Appellees, v. Ruth L. RUSHEN, Director of Corrections, State of California; Samuel D. Yockey, Deputy Director of Corrections; R.L. Pulley, Warden, California State Prison, San Quentin, California, and J.A. Ingram, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1132

720 F.2d 1132

Booker T. HILLERY, Jr., J.R. Butts, David Middleton, Glenn Bailey, Plaintiffs- Appellees, v. Ruth L. RUSHEN, Director of Corrections, State of California; Samuel D. Yockey, Deputy Director of Corrections; R.L. Pulley, Warden, California State Prison San Quentin, California, and J.A. Ingram, Defendants-Appellants.

No. 82-4609.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 14, 1983.

Decided Nov. 25, 1983.

Jack W. Londen, Morrison & Foerster, San Francisco, Cal., for plaintiffs-appellees.

Kenneth C. Young, San Francisco, Cal., for defendants-appellants.

Appeal from the United States District Court for the Northern District of California.

Before TANG and REINHARDT, Circuit Judges, and SMITH, ^* District Judge.

REINHARDT, Circuit Judge:

California prison officials appeal from the district court's issuance of a permanent injunction prohibiting them from enforcing revisions of Chapter 4600 of the Department of Correction's Administrative Manual ("Chapter 4600"). Chapter 4600 governs the types and amounts of personal property prison inmates in California are allowed to possess. Appellants revised Chapter 4600 without following the notice, comment, and hearing procedures of the Administrative Procedure Act of the California Government Code ("APA"). Cal.Gov't Code tit. II, div. 3, pt. 1, ch. 3.5 (West 1980). Appellees, inmates at San Quentin, challenged the revisions on federal constitutional and state-law grounds. Exercising its pendent jurisdiction, the district court found the revisions invalid because in adopting them the Department of Corrections failed to follow the procedures set forth in the APA. We affirm.

The state prison officials challenge the district court's holding that they were required to follow the provisions of the California APA in adopting the revisions. They also argue that the district court should have abstained from deciding the state-law issues, that the district court's exercise of pendent jurisdiction was improper because the plaintiffs had failed to exhaust their administrative remedies, that the district court's judgment violates the tenth amendment of the United States Constitution, and that the district court's decision contravenes the Supreme Court's admonishments that federal courts not intrude in the administration of state prisons. We reject these arguments.

I. STATEMENT OF FACTS

On January 18, 1982, appellant Samuel Yockey, Deputy Director of the California Department of Corrections, acting on behalf of the Department's Director, Ruth Rushen, revised Chapter 4600 without following the notice, comment, and hearing procedures of the California APA. Revised Chapter 4600 was to be implemented at all California prisons on July 31, 1982. In anticipation of Chapter 4600's implementation, appellees, four inmates at San Quentin, brought this action on behalf of the class of all San Quentin inmates, seeking to enjoin appellants from enforcing revised Chapter 4600 and San Quentin's conforming rules.

The San Quentin inmates alleged nine claims under federal and state law. The district court noted that the revisions to Chapter 4600, which "include new and severe limitations on the volume and kinds of permitted inmate property," raise "very serious issues under the sixth and fourteenth amendments [of the United States Constitution]." The court, however, found it unnecessary to decide those issues. Exercising pendent jurisdiction, it held revised Chapter 4600 invalid because, contrary to the requirements of section 5058(a) of the California Penal Code, appellants promulgated it without following the procedures mandated by the APA. Finding that appellees would suffer irreparable injury, the court concluded that they were entitled to a preliminary injunction. Because no triable issues remained, it issued a permanent injunction and final declaratory judgment.

II. COMPLIANCE WITH THE CALIFORNIA APA

Defendants do not dispute that in revising Chapter 4600 the prison administration did not follow the procedures set forth in the California APA. Although it is difficult to determine from the briefs filed by the state officials precisely what points they are trying to make on appeal, they seem to be arguing that detailed rules, as distinguished from general regulations, are for some unexplained reason exempt from the requirements of the APA. They also seem to be arguing that section 3190 of Title 15 of the California Administrative Code, which was promulgated in compliance with the APA, delegates to the Director the power to establish guidelines without following the strictures of the APA. Cal.Admin.Code tit. XV, Sec. 3190 (1977). ¹ They claim that nothing in the California statutes, regulations, or case law prevents such a delegation to deal with a situation that must be addressed in minute detail, or that requires variety of treatment among institutions. We find the state's position wholly without merit.

The California Penal Code plainly requires that the Director comply with the strictures of the APA whenever he prescribes or amends "rules and regulations for the administration of prisons." Cal.Penal Code Sec. 5058(a) (West 1980). The APA defines "regulation" as

every rule, regulation, order or standard of general application or the amendment, supplement or revision of any such rule, regulation, order or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.

Cal. Gov't Code Sec. 11342(b) (West 1980). The APA provides for only two exceptions--one for regulations relating only to the internal management of the state agency and one for forms prescribed by the agency or instructions relating to the use of the forms. Id.

Any argument that revised Chapter 4600 is not a regulation, or that it falls within one of the two exceptions provided for in the APA, is foreclosed by the California Court of Appeals' recent decision in Stoneham v. Rushen, 137 Cal.App.3d 729, 188 Cal.Rptr. 130 (1982). In that case, prison inmates challenged the standardization of the system used by the Department of Corrections to classify inmates for purposes of determining which prison they should be assigned to. The court found that the Department was required to follow the procedures set forth in the APA because the new scheme "embod[ies] ... a rule of general application significantly affecting the ... prison population." Id. at 736, 188 Cal.Rptr. 130. Because revised Chapter 4600 fits that description precisely, Stoneham leaves appellants no room to argue that these rules are beyond the scope of the APA as it has been interpreted by the California courts.

Appellants urge us to read into California law a third exception to the requirements of the APA. They argue that, when the Director feels that a problem must be dealt with flexibly or in minute detail, he should be able to delegate to himself, by means of a properly promulgated regulation, the power to deal with the problem without following the APA procedures. We agree with the district court that California law permits no such delegation. ²

Appellants cite no authority for their somewhat unusual theory. We find no reason to believe that California allows its agencies to avoid following the procedures state law requires them to follow simply by delegating to themselves the power to ignore those procedures. Were we to create the exception to the APA suggested by the prison authorities we would strip the statutory requirement that regulations be promulgated pursuant to the APA of all its force. Moreover, the structure and language of the APA is wholly inconsistent with appellants' theory. The express inclusion of two exceptions in the statute suggests strongly that further exceptions are not available. More importantly, the very terms of the definition of "regulation"--including as they do "the amendment, supplement, or revisions of rules, regulations, orders or standards to implement, interpret, or make specific the law enforced or administered," Cal.Gov't Code Sec. 11342(b) (West 1980) (emphasis supplied)--make it clear that even detailed guidelines are subject to the APA.

Armistead v. State Personnel Board, 22 Cal.3d 198, 200, 149 Cal.Rptr. 1, 583 P.2d 744 (1978), further demonstrates the incorrectness of appellants' view of California law. In Armistead, the California Supreme Court refused to give any deference to an administrative interpretation of an agency rule when that interpretation was not promulgated in accordance with the procedural requirements of the APA. Such a holding was necessary, the court said, in order to prevent agencies from avoiding the strictures of the APA by denominating rules as "policies," "interpretations," "instructions," "guides," "standards," and the like, and by placing rules in "internal organs of the agency such as manuals, memoranda, bulletins, or [directing them] to the public in the form of circulars or bulletins." Id. at 205, 149 Cal.Rptr. 1, 583 P.2d 744 (quoting Senate Interim Committee on Administrative Regulations, First Report to the 1955 Legislature, at 9). The regulations here fit that description perfectly: they are "guidelines" placed in the agency's manual. The court also noted the history of California state agencies' efforts to avoid their legal obligation to comply with procedural requirements before enacting regulations. It said, "the manner of avoidance [of the APA] takes many forms." Id. (quoting Senate Interim Committee on Administrative Regulations, First Report to the 1955 Legislature, at 9). The argument that the Director may delegate to himself the power to adopt regulations without following the APA's procedure is simply another attempted form of "avoidance."

Moreover, even if the asserted delegation would not be contrary to statute, in order to prevail appellants would have to show that section 3190 provides for a delegation to the Director. Appellants...