Marks, In re

• Decision Date: 30 April 1969
• Docket Number: Cr. 12822
• Citation: 71 Cal.2d 31,453 P.2d 441,77 Cal.Rptr. 1
• Court: California Supreme Court
• Parties: , 453 P.2d 441 In re Richard MARKS on Habeas Corpus.

Page 1

77 Cal.Rptr. 1

71 Cal.2d 31, 453 P.2d 441

In re Richard MARKS on Habeas Corpus.

Cr. 12822.

Supreme Court of California In Bank.

April 30, 1969.

Norman Herring, Philip M. Schwabacher, Lancaster, Henry J. Shames, Los Angeles, and Harold Benjamin, Beverly Hills, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bradley A. Stoutt, Deputy Atty. Gen., for respondent.

MOSK, Justice.

This is an application for writ of habeas corpus on behalf of Richard Marks (hereinafter called petitioner), currently confined in the California Rehabilitation Center (hereinafter called CRC) under an order of commitment as a narcotics addict. (Welf. & Inst.Code, § 3051.)

We are called upon to resolve, in effect, a jurisdictional dispute between the State of California's narcotics addict rehabilitation program and that of Synanon, a well-known private rehabilitation organization. The principal issue is whether the state may impose its antinarcotic testing requirements on those of its outpatients who are also residents of Synanon.

We pause at the outset to emphasize that we do not presume to judge the merits of either program; our task is limited to determining whether this petitioner is entitled to relief within the framework of existing statutory and constitutional law. Thus, viewed, petitioner's claims are not sustainable and the writ of habeas corpus must be denied.

Petitioner was first committed to the CRC as a narcotics addict in May 1965, following a conviction for possession of heroin. In April 1966 the Narcotic Addict Evaluation Authority (hereinafter called NAEA) granted him outpatient status and released him to Parkway Center, a 'halfway house' operated by the state. ¹

In July 1966 petitioner was given permission to leave Parkway Center and establish independent residence. Throughout this period he participated successfully in the Nalline testing program. ² In September 1966, however, a urine test produced a positive reading of heavy morphine content. Petitioner had meanwhile left his approved residence, and was finally found by his field agent at the house of a fellow outpatient. He was discovered to have heroin in his pockets, and admitted that he had begun to use narcotics again. As a result of this arrest petitioner was convicted a second time of possession of heroin, and on January 17, 1967, was again committed to the CRC.

The NAEA thereupon suspended petitioner's prior outpatient status on the ground of multiple violations of the conditions of his release: i.e., unauthorized change of residence, illegal use of narcotics, and conviction of the crime of possession. It was decided, however, to retain petitioner in the program for a further attempt at rehabilitation. On September 8, 1967, petitioner was again released on outpatient status. As he was no longer deemed suitable for Parkway Center, he took up an approved independent residence. For some two months thereafter he showed cooperation and stability, and participated in the Nalline testing program.

In December 1967, Carl P. Doty, petitioner's field agent, was unable to locate him at his residence or place of work. On January 5, 1968, petitioner phoned Doty, told him he had moved in with his father-in-law, and said he would report to Doty's office to discuss the change of residence. He did not appear, however, until February 5, 1968, at which time he admitted he had been using narcotics since the previous December. He was temporarily placed in a Salvation Army halfway house, and two days later the NAEA suspended his outpatient status and classified him as a 'releasee at large.' On February 15, 1968, petitioner left the halfway house without permission, stating he would contact his field agent within the week. He did not do so, and nothing was heard from him until Doty received a letter from Synanon on March 14, 1968, advising that petitioner had been accepted as a resident of that organization's facility in Santa Monica.

Doty visited petitioner at his Synanon residence in March and May, and reported that he seemed to be 'stabilizing' and had become 'quite involved' in the Synanon program. On May 20, 1968, Doty recommended that petitioner be reinstated as an outpatient. The NAEA deferred its decision, and petitioner was instructed to report for a Nalline test on June 6, 1968. He complied, and the results were negative. The Authority formally restored petitioner to outpatient status as of the following day, and he returned to Synanon.

On June 12, 1968, Doty instructed petitioner to report for another Nalline test. This time petitioner refused, stating that he would no longer submit to any form of antinarcotic testing, whether by Nalline, urinalysis, or physical inspection for needle marks, and whether administered by a field agent or at the Central Testing Center. ³

Doty reported this refusal to the NAEA, and charged petitioner with breach of the condition of his release requiring him to participate in the testing program. (Post, fn. 17.) In so doing, however, Doty expressed the opinion that petitioner was experiencing a 'positive response' to the Synanon program and was making a satisfactory overall adjustment, and that petitioner's participation in Synanon 'would appear to be in (his) as well as the community's best interests.' Doty therefore recommended that petitioner be continued in outpatient status. On the other hand, William T. Byrnes, regional administrator of the Narcotic Addict Outpatient Program, reviewed the case and took the position that 'This man's manipulative conduct in getting into Synanon and his individual outpatient adjustments aside from any merit or lack of merit possessed by Synanon as a treatment agency are sufficient to warrant return.'

The matter was heard by the NAEA on June 20, 1968. After considering the various reports on file, the Authority found that petitioner had violated the condition of his release relating to mandatory antinarcotic testing, and unanimously concluded that his outpatient status should be again suspended and he should be returned to the CRC 'for the best interests of the person and society,' as prescribed by Welfare and Institutions Code section 3152. On June 26, 1968, petitioner was removed from Synanon and taken to the main CRC facility at Corona, where he is now confined.

Welfare and Institutions Code section 3151 provides in relevant part that, after an initial six-month period of observation and treatment, whenever a person committed to the CRC 'has recovered from his addiction * * * to such an extent that, in the opinion of the Director of Corrections, release in an outpatient status is warranted,' the director shall certify such fact to the NAEA; and that the NAEA may thereupon 'release such person in an outpatient status subject to all rules and regulations adopted by the authority, and subject to all conditions imposed by the authority, whether of general applicability or restricted to the particular person released in outpatient status, and subject to being retaken and returned to inpatient status as prescribed in such rules, regulations, or conditions.'

Welfare and Institutions Code section 3152 implements section 3151 by providing that 'The rules for persons in outpatient status shall include but not be limited to close supervision of the person after release from the facility, periodic and surprise testing for narcotic use, counseling and return to inpatient status at the California Rehabilitation Center or its branches at the discretion of the authority, if from the reports of agents of the Department of Corrections or other information including reports of law enforcement officers as to the conduct of the person, the authority concludes that it is for the best interests of the person and society that this be done.'

As appears from the decision of the NAEA in the case at bar, that agency construes section 3152 to mean that antinarcotic testing is mandatory for all persons in outpatient status under the CRC program. Petitioner insists, however, that the statute does not give the NAEA the power to require him to submit to such testing 'without probable cause.' The contention is that testing is not mandatory but discretionary, and that an exercise of the Authority's discretion in this respect must be predicated on specific facts showing a need for such controls in his individual case. In support of this position, petitioner selectively reads the statute to provide for 'periodic and surprise testing * * * at the discretion of the authority, if from the reports (of correctional personnel) as to the conduct of the person, the authority concludes that it is for the best interests of the person and society that this be done.'

Section 3152 will not reasonably bear the proposed construction. To begin with, antinarcotic testing of persons on outpatient status--particularly the 'surprise' testing program--is designed not simply to detect past use of illegal drugs but also to deter their future use. (Cal.Dept. of Justice, A Report on the Synthetic Opiate Anti-Narcotic Testing Program (1961) pp. 8, 14.) The latter purpose would be totally frustrated if an outpatient could be required to test only after his 'conduct' had been observed by correctional personnel and a 'report' had been filed which charged, for example, that he had probably reverted to narcotics use. Moreover, if petitioner's construction were adopted the statute would likewise require reports as to an outpatient's conduct before he could be given 'close supervision' or 'counseling.' Yet the Legislature elsewhere made clear its intent that all outpatients be kept under such supervision until they can safely be discharged. ⁴ To effectuate this intent the Legislature used the mandatory word 'shall' in prescribing certain outpatient rules in section 3152; more specifically, by declaring that the outpatient rules shall 'include but not be limited to' the listed matters, the...