Payne v. Superior Court

• Decision Date: 03 September 1976
• Citation: 17 Cal.3d 908,553 P.2d 565,132 Cal.Rptr. 405
• Court: California Supreme Court
• Parties: , 553 P.2d 565 Torrey Wood PAYNE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SOUTH BAY SENTRY DOGS, INC., Real Party in Interest. L.A. 30455.

Page 405

132 Cal.Rptr. 405

17 Cal.3d 908, 553 P.2d 565

Torrey Wood PAYNE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

SOUTH BAY SENTRY DOGS, INC., Real Party in Interest.

L.A. 30455.

Supreme Court of California,

In Bank.

Sept. 3, 1976.

Torrey Wood Payne, in pro. per., and William Sheffield, Santa Ana, under appointment by the Supreme Court, for petitioner.

Michael B. Weisz and Stanley E. Gunterman, Marysville, as amici curiae on behalf of petitioner.

John H. Larson, County Counsel, and Michael H. Dougherty, Deputy County Counsel, Los Angeles, for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Russell Iungerich, Shunji Asari and Carol Wendelin Pollack, Deputy Attys. Gen., as amici curiae on behalf of respondent.

No appearance for real party in interest.

MOSK, Associate Justice.

Few liberties in America have been more zealously guarded than the right to protect one's property in a court of law. This nation has long realized that none of our freedoms would be secure if any person could be deprived of his possessions without an opportunity to defend them "at a meaningful time and in a meaningful manner." (Fuentes v. Shevin (1972) 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556.) In a variety of contexts, the right of access to the courts has been reaffirmed and strengthened throughout our 200-year history.

For one limited category of Californians, however, the right is more illusory than real. An indigent prisoner may be sued civilly by anyone in this state, but is unable to defend against that suit. Although a monetary judgment may pursue him for the rest of his life (Code Civ.Proc., §§ 681, 685), he may not personally appear to prevent its original imposition. If he cannot afford counsel to appear as his surrogate, he will almost inevitably suffer a default judgment. One such prisoner, Torrey Wood Payne, asserts that this denial of access to the courts violates his rights to due process and equal protection of the law under the state and federal Constitutions. We agree with him in principle.

Payne (petitioner) was charged in a criminal complaint with stealing guard dogs from a business competitor, South Bay Sentry Dogs, Inc. A jury convicted him of receiving stolen property, while finding him not guilty of grand theft charges, and he was placed on three years' probation.

Shortly thereafter, South Bay filed a civil complaint against petitioner seeking damages arising from the theft of the guard dogs. The attorney who had represented petitioner in his criminal trial filed an answer in his behalf.

Several months later, petitioner's probation in the criminal case was revoked and he was sentenced to prison. Petitioner's attorney asked to be relieved as counsel and requested petitioner to sign a release form, as there was little likelihood that the attorney would be paid for services rendered in either the civil or the criminal case.

The civil case soon began its inexorable progress toward trial. Petitioner's request of the Department of Corrections to allow him to attend the civil trial was denied. In another letter, petitioner asked respondent court to dismiss the action against him because he had not received copies of the complaint, pointing out that he was incarcerated.

In petitioner's forced absence, a default judgment was entered against him for $24,722. One month later, petitioner sought a writ of error Coram nobis in respondent court on the grounds that he had been denied permission to attend the trial and had been denied his right to counsel. Treating the petition as a motion to vacate a default judgment (Code Civ.Proc., § 473), the court rejected the request.

In the Court of Appeal petitioner filed another document which was treated as a petition for writ of mandate; it too was denied. He then petitioned this court; we granted a hearing, appointed counsel for these proceedings, requested a supplemental petition for writ of mandate, and issued an alternative writ.

We must decide not only whether petitioner was unconstitutionally deprived of his right of access to the courts, but if so, what the appropriate remedy should be, and whether proceeding by writ of mandate is proper under these circumstances. As the resolution of the latter two issues depends in part on the validity of petitioner's constitutional claim, we begin with that question.

Contrary to the state's assertions, ¹ the force of petitioner's contentions is in no way affected by Penal Code section 2600, once known as a 'civil death' statute. At the time proceedings were initiated in the present case, that statute purported to suspend all civil liberties of a prisoner except a few specifically enumerated rights and those authorized by the Adult Authority or the sentencing judge. However, it has long been judicially recognized in California and in states with similar statutes that 'prisoners, while forfeiting, as a necessary corollary of prison life, significant rights and privileges enjoyed by the general populace, retain those basic rights which are not incompatible with the running of the penal institution.' (Newkirk v. Butler (S.D.N.Y.1973) 364 F.Supp. 497, 501; see also In re van Geldern (1971) 5 Cal.3d 832, 836, 97 Cal.Rptr. 698, 489 P.2d 578.) Recently the Legislature itself made this clear, amending section 2600 to provide 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.' Thus section 2600 furnishes little support for the state's position, and we must evaluate this denial of access to the courts in light of constitutional mandates.

The issue before us has not been squarely faced in California, although both petitioner and the state may take some comfort in the language of certain Court of Appeal decisions dealing with prisoners as civil defendants. In People v. Lawrence (1956) 140 Cal.App.2d 133, 295 P.2d 4, the court struck down a statute allowing an insurance company to recover property allegedly stolen by a prisoner, on the ground that the statute did not provide for notice and an opportunity to be heard. Similarly, the court in In re McNally (1956) 144 Cal.App.2d 531, 300 P.2d 869, ruled that a prisoner was entitled to engage paid counsel, reasoning that a prisoner's liability to be sued necessarily carries with it a right to defend.

The right to defend, however, has been tempered by judicial determination that a prisoner has no right to appear personally in court to protect his property. (Wood v. Superior Court (1974) 36 Cal.App.3d 811, 112 Cal.Rptr. 157; In re McNally (1956) supra, 144 Cal.App.2d 531, 532, 300 P.2d 869; In re Bagwell (1938) 26 Cal.App.2d 418, 420--421, 79 P.2d 395 (dealing with a prisoner who was plaintiff in a civil suit).) Yet in none of these cases did the courts confront the dual deprivation facing an indigent prisoner. ² What is at stake is neither the abstract right of a prisoner to appointed counsel nor his right to appear personally in court. Instead, the issue is the propriety of depriving indigent prisoners of both those rights and thereby virtually denying their access to the courts.

The task in evaluating this denial is similar in both its due process and equal protection aspects. In either case, we must determine whether state action has infringed upon a fundamental right of petitioner. If it has, the state action can be upheld only if necessary to effect an overriding governmental interest. (Boddie v. Connecticut (1971) 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113; Shapiro v. Thompson (1969) 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600.) As a corollary to this compelling state interest test, the government must show that its interest cannot be satisfied by alternative methods less restrictive of the individual right abridged.

The Fourteenth Amendment to the United States Constitution prohibits a state from depriving any person of property without due process of law. ³ This mandate has been interpreted to require, at a minimum, that 'absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.' (Boddie v. Connecticut (1971) supra, 401 U.S. at p. 377, 91 S.Ct. at p. 785.) Thus, the United States Supreme Court has long recognized a constitutional right of access to the courts for all persons, including prisoners. (Procunier v. Martinez (1974) 416 U.S. 396, 419, 94 S.Ct. 1800, 40 L.Ed.2d 224; Cruz v. Beto (1972) 405 U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d 263; Johnson v. Avery (1969) 393 U.S. 483, 487, 89 S.Ct. 747, 21 L.Ed.2d 718; Price v. Johnston (1948) 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356.)

For the most part this access right has been related to review of criminal convictions, particularly by writs of habeas corpus. (See, e.g., Price v. Johnston (1948) supra, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (prisoners granted right, on case-by-case basis, to orally argue their appeals; Johnson v. Avery (1969) supra, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (rule prohibiting inmate assistance on habeas corpus petitions struck down).) But as one federal court has noted, the due process right is much broader: 'it includes access to all courts, both state and federal, without regard to the type of petition or relief sought.' (Hooks v. Wainwright (M.D.Fla.1972) 352 F.Supp. 163, 167.) Thus, a number of courts have granted prisoners protective and assertive rights in civil actions. As early as 1914, the Virginia Supreme Court of Appeals recognized the injustice of a situation similar to that faced by the prisoner involved here: 'Process at the institution of a suit is issued in order that the defendant may appear and defend. When it is served upon a...