Holdman v. Olim

• Decision Date: 18 July 1978
• Docket Number: No. 5963,5963
• Citation: 581 P.2d 1164,59 Haw. 346
• Parties: Scharlette HOLDMAN, Individually and on behalf of all persons similarly situated, Plaintiff-Appellant, v. Antone OLIM, Individually and as Superintendent of Prisons for the State of Hawaii, John Smythe, Individually and as Head of Security at Oahu State Prison and Matron Jane Doe, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 1164

581 P.2d 1164

59 Haw. 346

Scharlette HOLDMAN, Individually and on behalf of all

persons similarly situated, Plaintiff-Appellant, v. Antone OLIM, Individually and as Superintendent of Prisons

for the State of Hawaii, John Smythe, Individually

and as Head of Security at Oahu State

Prison and Matron Jane Doe,

Defendants-Appellees.

No. 5963.

Supreme Court of Hawai'i.

July 18, 1978.

Syllabus by the Court

1. In order to avoid infringement of the guarantee of equal protection of the laws under the Fourteenth Amendment, a classification based upon sex must serve important governmental objectives and must be substantially related to the achievement of those objectives.

2. A requirement that a woman visitor to an all-male prison wear a brassiere does not deny the equal protection of the laws guaranteed by the Fourteenth Amendment.

3. A requirement that a woman visitor to an all-male prison wear a brassiere withstands strict scrutiny under the guarantee of the equal protection of the laws contained in Article I, Section 4 of the Hawaii Constitution, as necessary to protect a compelling state interest.

4. A requirement that a woman visitor to an all-male prison wear a brassiere does not infringe the visitor's constitutional right to privacy.

5. The Equal Rights Amendment of the Hawaii Constitution, Article I, Section 21, is not infringed by a regulation which depends for its application upon a physical characteristic which is unique to one sex.

6. A requirement that a woman visitor to an all-male prison wear a brassiere does not deny or abridge equality of rights under the law in violation of Article I, Section 21 of the Hawaii Constitution.

7. An agency directive regulating only the access of individuals to a public facility in the custody of the agency, where imposed for the security of the facility and not affecting private rights or procedures available to the public, concerns only the internal management of the agency and is not a rule within the meaning of the Hawaii Administrative Procedure Act. HRS § 91-1(4).

Steven E. Kroll, Honolulu, for plaintiff-appellant.

Charlotte E. Libman, Deputy Atty. Gen., Honolulu, for defendants-appellees.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

Appellant, a woman visitor to Oahu State Prison, was not allowed to enter the prison when it was discovered she was not wearing a brassiere. In an action against appellees, prison officials, appellant sought an injunction, damages and declaratory relief, and appeals from dismissal of her action at the close of plaintiff's evidence. Appellees purported to act pursuant to a directive controlling the dress of visitors to the prison. Appellant contends that the directive was unconstitutional under both the federal and state constitutions because it discriminated on the basis of sex and infringed privacy interests and, as further ground of its invalidity, that it was not promulgated according to the standards of the Hawaii Administrative Procedure Act (HAPA). We affirm.

Appellant sought entry into the prison, all of the residents of which were male, to meet with an inmate. ¹ She consented to a routine search of her person by a prison matron prior to entry. During the search, it was discovered and appellant admitted that she was not wearing a brassiere. Appellant was advised by the matron that she would not be permitted to enter unless she wore such an undergarment. The matron purported to follow a statement issued by the Acting Prison Administrator, which provided in pertinent part:

INTERIM VISITING AND CONDUCT OF VISITORS VISITORS WILL BE PROPERLY DRESSED. WOMEN VISITORS ARE ASKED TO BE FULLY CLOTHED, INCLUDING UNDERGARMENTS. PROVOCATIVE ATTIRE IS DISCOURAGED.

Appellant did not bring up a transcript of the proceedings below, and the record contains no exhibits other than copies of portions of the rules and regulations of the correction division of the State Department of Social Services and Housing. We are confined to the findings of facts entered by the trial court for the factual posture of this case. Although it is characterized as a "regulation or policy statement" in the findings of fact, the circumstances of the issuance of the statement quoted above are not disclosed by the record. It is undisputed that it lacked the force of law. Since it is before us as the instruction of higher authority to which the matron referred in denying appellant's entry into the prison, we think it is best characterized for the purposes of this opinion as a directive.

Appellant seeks declaratory and injunctive relief as well as money damages based upon the alleged deprivation of constitutional rights and the alleged subjection of appellant to emotional injury. In dismissing her complaint under Rule 41(b) H.R.Civ.P., the circuit court found that HAPA did not apply to the challenged directive, that there was no evidence that it was arbitrarily or capriciously issued, interpreted or applied to appellant by prison officials, and that appellant neither suffered sex discrimination nor was denied the right to privacy.

The primary thrust of appellant's argument to this court is that the directive on its face discriminates on the basis of sex. Appellant asserts that this discrimination is in violation of the equal protection clause of the Fourteenth Amendment and its counterpart in the Hawaii Constitution, Article 1, Section 4, and of the Hawaii equal rights provision, Article 1, Section 21.

I

At the outset, we must recognize that appellant seeks to show discriminatory exercise of authority on the part of appellees by the single incident of appellant's exclusion. The record does not tell us whether a pattern of discrimination could be discerned in appellees' practices. For this, we might have to know whether male visitors were admitted with less onerous dress requirements. We might also have to know whether appellees interpreted the requirement of undergarments as including a brassiere in the case of other women visitors. We do not know appellant's personal physical characteristics and have no means of determining what differentiation was in fact practiced by appellees as among women visitors. These deficiencies in the record are troublesome. Nevertheless, appellees have raised no issue with respect to any failure of the record to show the differentiation in the treatment of prison visitors which appellant alleges. For the purposes of this case, we will consider the directive as sufficiently evidencing that the motivation underlying the directive was to effect the alleged differentiation and that such differentiation was in fact practiced in admitting visitors to the prison. Cf. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).

A challenge to a legislative classification as violative of the equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution is ordinarily resolved by inquiring whether a rational basis exists for the classification. Nelson v. Miwa, 56 Haw. 601, 546 P.2d 1005 (1976). But "this court has recognized that laws classifying on the basis of suspect categories or impinging upon fundamental rights expressly or impliedly granted by the Constitution are presumed to be unconstitutional unless the state shows compelling state interests which justify such classifications." Nelson v. Miwa, supra at 605 n. 4, 546 P.2d at 1008 n. 4. This court has not dealt with a sex-based classification. In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), a plurality of the United States Supreme Court favored the inclusion of classifications based upon sex among those considered to be suspect for the purposes of the compelling state interest test. However, subsequent cases have made it clear that the current governing test under the Fourteenth Amendment is a standard intermediate between rational basis and strict scrutiny. "(C)lassifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). Also see Califano v. Goldfarb, 430 U.S. 199, 209, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) and Califano v. Webster, 430 U.S. 313, 316-17, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977).

Maintenance of order or control in a prison has been recognized to be an important, in fact a vital, governmental objective. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 132, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 412-13, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). The institutional consideration of internal security within the correction facilities is central to all correctional goals. Pell v. Procunier, supra, 417 U.S. at 823, 94 S.Ct. 2800. Security considerations are sufficiently paramount in the administration of the prison to justify restrictions on the entry of outsiders for face-to-face contact with inmates. Id. at 827, 94 S.Ct. 2800. Because of the essential need for security and the recognition that courts are ill-equipped to deal with matters of prison administration, wide-ranging deference is given to prison administrators in the exercise of their discretion. Jones, supra, 433 U.S. at 119, 97 S.Ct. 2532; Procunier v. Martinez, supra, 416 U.S. at 405, 94 S.Ct. 1800. In Dothard v. Rawlinson, 433 U.S. 321, 336, 97 S.Ct. 2720, 2730, 53 L.Ed.2d 786 (1977), the mere presence of a woman as a guard in a "contact" position in a prison, under the conditions prevailing in the Alabama prison system, was regarded as "a real threat . . . to the basic control of the penitentiary and protection of its inmates".

Dress standards are intimately related to sexual attitudes. We do not express individual views of propriety...