Muszalski, In re

• Citation: 125 Cal.Rptr. 286,52 Cal.App.3d 500
• Decision Date: 27 October 1975
• Docket Number: Cr. 7329
• Court: California Court of Appeals
• Parties: In re Alexander J. MUSZALSKI on Habeas Corpus.

Page 286

125 Cal.Rptr. 286

52 Cal.App.3d 500

In re Alexander J. MUSZALSKI on Habeas Corpus.

Cr. 7329.

Court of Appeal, Fourth District, Division 2, California.

Oct. 27, 1975.

Hearing Denied Jan. 14, 1976.

Rowan K. Klein, Beverly Hills, under appointment by the Court of Appeal, for petitioner

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Michael D. Wellington and John W. Carney, Deputy Attys. Gen., for respondent People of the State of California.

OPINION

KAUFMAN, Associate Justice.

Convicted apparently of the murder of his wife and the attempted murder of a member of his wife's family, Alexander J. Muszalski is an inmate at the California Rehabilitation Center in Corona. He petitions this court for a writ of habeas corpus to require the Department of Corrections (hereinafter 'Department') to permit him and his attorney to inspect all documents in his file as maintained by Department. Muszalski seeks to inspect these records in preparation for a parole consideration hearing before the Adult Authority.

Muszalksi was given an opportunity to inspect his file on October 4, 1974, at the California Rehabilitation Center in the presence of Lindsey Doyle, a correctional counsellor. Prior to granting Muszalski permission to inspect his file, Department, through Mr. Doyle, classified a number of documents as confidential, removed these documents to the confidential case records section of the file and refused to permit Muszalski to inspect these documents.

On October 28, 1974, Muszalski filed a petition for a writ of habeas corpus in Riverside Superior Court seeking to inspect all of the documents classified as confidential by Department. An evidentiary hearing was had, and, on November 20, 1974, the court rendered its order partially granting and partially denying Muszalski's petition for habeas corpus. The order required Department to permit Muszalski to inspect four documents classified by the Department as confidential, but upheld Department's claim of confidentiality as to a substantial number of other documents.

The People appealed to this court from that part of the order requiring Department to allow Muszalski to inspect the four documents. (See Pen.Code, §§ 1506, 1507.) That appeal was the subject of a companion case, In re Muszalski, Cal.App., 125 Cal.Rptr. 281, at page 282 in which we affirmed the order of the trial court. Having no right of appeal from the order of the Riverside Superior Court insofar as that order denied his petition for writ of habeas corpus (People v. Ryan, 118 Cal.App.2d 144, 149, 257 P.2d 474), Muszalski filed in this court a petition for habeas corpus to compel Department to permit him to inspect the documents as to which Department's confidential designation had been impliedly upheld by the order of the Riverside Superior Court. We issued an order to show cause to be heard and considered at the same time as the People's appeal. Contrary to the apparent understanding of the parties, we did not consolidate the two matters. We have, however, after giving notice and opportunity to be heard to both parties, taken judicial notice of a number of documents lodged with this court in the appeal, 125 Cal.Rptr. 281 as set forth in the margin. ¹ (Evid.Code, §§ 459, 455, 452(c), (d).) At the request of Muszalski and without opposition from the Attorney General, we have also taken judicial notice of the documents appended to Muszalski's traverse herein as exhibits 7 and 8 ² and have considered the documents attached to the traverse as exhibits 4 through 6 as if there were certified copies of these documents in Muszalski's file as maintained by Department. ³

Contentions and Issues

Both parties make contentions raising a substantial number of issues. We have concluded, however, that the issue of Muszalski's failure to exhaust administrative remedies is dispositive. The other issues will not necessarily recur and it is therefore not necessary for us to address them.

Exhaustion of Administrative Remedies

It is well settled as a general proposition that a litigant will not be afforded relief in the courts unless and until he has exhausted available administrative remedies. (E.g., Abelleira v. District Court of Appeal, 17 Cal.2d 280, 291--296, 109 P.2d 942; McHugh v. County of Santa Cruz, 33 Cal.App.3d 533, 538--539, 109 Cal.Rptr. 149.) Whether this general rule applies to applications for habeas corpus relief such as is sought in the present proceeding has apparently not been decided in California.

Muszalski does not seriously contend that he has taken any action toward exhausting any administrative remedies. Indeed, the reporter's transcript of the evidentiary hearing in the companion case, 125 Cal.Rptr. 281 of which we have taken judicial notice (see fn. 1, Ante) discloses that Muszalski's counsel was aware of certain appeal procedures but took the position that Muszalski need not comply therewith inasmuch as there was no guarantee of a speedy, timely decision, keeping in mind that Muszalski was trying to prepare for a parole consideration hearing scheduled for January 1975.

Muszalski first contends that in In re Olson, 37 Cal.App.3d 783, 112 Cal.Rptr. 579, is dispositive of the question since it undertook to prescribe appropriate procedures and failed specifically to include exhaustion of administrative remedies among the procedures outlined. (See 37 Cal.App.3d at pp. 790--791, 112 Cal.Rptr. 579.) This contention is without substance. The court in Olson had no occasion to consider or discuss the applicability of the doctrine of exhaustion of administrative remedies. A case is not authority for propositions neither considered nor discussed in the opinion. (Grant v. Murphy, 116 Cal. 427, 432, 48 P. 481; Hart v. Burnett, 15 Cal. 530, 598--599.)

Next, Muszalski contends that, inasmuch as he is seeking vindication of a constitutional (due process) right, the doctrine of exhaustion of administrative remedies is not applicable to him. In support of this proposition he cites a number of federal decisions such as Hardwich v. Ault, 5 Cir., 517 F.2d 295, 296--297; McCray v. Burrell, 4 Cir., 516 F.2d 357, 361--365. These cases are not in point. They deal with the right of a state prisoner to maintain an action under federal civil rights statutes (e.g., 42 U.S.C. § 1983) without exhaustion of state judicial and administrative remedies. The result in these cases turns upon the history, purposes and language of the federal civil rights statutes. (See, e.g., McNeese v. Board of Educazion 373 U.S. 668, 671, 83 S.Ct. 1433, 10 L.Ed.2d 622, 625; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.)

More in point, although far from controlling, are the California cases holding that habeas corpus will not issue where the petitioner has failed to seek relief in a lower court (e.g., In re Hillery, 202 Cal.App.2d 293, 294, 20 Cal.Rptr. 759) or where the petitioner has failed to exhaust his remedy of appeal (e.g., In re Dixon, 41 Cal.2d 756, 760--761, 264 P.2d 513). In the Dixon case the petitioner, like Muszalski in the proceeding at bench, argued that a failure to appeal would not prevent a resort to habeas corpus when 'fundamental constitutional rights are involved.' The court replied: 'The same principles (requirement of exhaustion of remedy on appeal) should apply even though the alleged errors involving factual issues relate to an asserted denial of constitutional rights.' (41 Cal.2d at p. 761, 264 P.2d at p. 515.)

Closer yet are thoses cases holding that federal habeas corpus will not issue where it appears that the petitioner has not exhausted available state judicial and administrative remedies. (E.g., Preiser v. Rodriguez, 411 U.S. 475, 494--495, 93 S.Ct. 1827, 36 L.Ed.2d 439, 453; McCray v. Burrell, supra, 516 F.2d at p. 361.)

Most in point and legally indistinguishable, we think, are the federal cases holding that a federal prisoner seeking relief similar to that sought by Muszalski herein must, as a condition precedent to a successful application for relief in the federal court, ⁴ exhaust the administrative remedies made available to him by the regulations of the United States Bureau of Prisons. (Jones v. Carlson, 5 Cir., 495 F.2d 209, 210; Waddell v. Alldredge, supra, 480 F.2d at pp. 1079--1080; Paden v. United States, 5 Cir., 430 F.2d 882, 883; Green v. United States, supra, 283 F.2d at pp. 688--689.)

The many reasons for the rule requiring exhaustion of administrative remedies are discussed in McKart v. United States, 395 U.S. 185, 193--195, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194, 203--204. 'A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the purpose of applying a (law) in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutory appeals.

'Closely related to the above reasons is a notion peculiar to administrative law. The administrative agency is created as a separate entiry and invested with certain powers and duties. The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction. As Professor Jaffe puts it, '(t)he exhaustion doctrine is, therefore, an expression of executive and administrative autonomy.' (Fn. omitted.) This reason is particularly pertinent where the...