Pro-Family Advocates v. Gomez

• Decision Date: 01 July 1996
• Docket Number: No. A070532,PRO-FAMILY,A070532
• Citation: 46 Cal.App.4th 1674,54 Cal.Rptr.2d 600
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 4962, 96 Daily Journal D.A.R. 7921 ADVOCATES, Plaintiff and Respondent, v. James GOMEZ, as Director, etc., Defendant and Appellant.

Page 600

54 Cal.Rptr.2d 600

46 Cal.App.4th 1674, 96 Cal. Daily Op. Serv. 4962,

96 Daily Journal D.A.R. 7921

PRO-FAMILY ADVOCATES, Plaintiff and Respondent, v. James GOMEZ, as Director, etc., Defendant and Appellant.

No. A070532.

Court of Appeal, First District, Division 4, California.

July 1, 1996.

Rehearing Denied July 31, 1996.

Review Denied Sept. 18, 1996.

Daniel E. Lungren, Attorney General, Peter J. Siggins, Senior Assistant Attorney General, Bruce M. Slavin, Morris Lenk, Supervising Deputy Attorneys General, Susan J. King, Karl S. Mayer, Deputy Attorneys General, for appellant.

Michael Satris, Margaret Littlefield, Bolinas, Greg Brown, Bolinas, Carrie Kojimoto, Steve Fama, Gina S. Berry, for respondent.

REARDON, Associate Justice.

In this appeal by the Director of the California Department of Corrections, ¹ we must determine whether the trial court erred by issuing a preliminary injunction barring enforcement of an administrative regulation excluding certain prisoners from participation in the overnight family visiting program. We hold that the regulation does not constitute an ex post facto law, nor does it violate equal protection. ² Thus, the trial court erred and we reverse the preliminary injunction.

I. FACTS

In April 1995, appellant James Gomez--acting in his capacity as director of the state Department of Corrections--promulgated a regulation prohibiting family visits ³ for specified state prison inmates. The restrictions--which were to take effect on May 30, 1995--applied to inmates convicted of certain sex offenses; those convicted of violent offenses committed against a family member or a minor; those sentenced to life terms; long-term inmates temporarily classified to close custody; and inmates whose case factors indicate that their participation in the family visiting program would be incompatible with public safety. ⁴

Respondent Pro-Family Advocates ⁵ was then in the midst of litigation challenging an earlier version of this regulation. ⁶ Its earlier-filed complaint had sought to enjoin enforcement of that regulation on equal protection and ex post facto grounds, inter alia. (U.S. Const., art. I, § 9, subd. (3); Amend. XIV; Cal. Const., art. I, § 7, subd. (a).) By then, a preliminary injunction enjoined Gomez from enforcing the earlier regulation. In April 1995, Pro-Family was permitted to amend its complaint to challenge the 1995 regulation, as well. In May 1995, its motion to modify the existing preliminary injunction was granted in most respects, ⁷ precluding Gomez from enforcing the 1995 regulation. ⁸

II. PRELIMINARY DISCUSSION

A. Standard of Review

The decision to grant a preliminary injunction rests in the sound discretion of the trial court. A trial court abuses its discretion if it exceeds the bounds of reason or contravenes uncontradicted evidence. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69, 196 Cal.Rptr. 715, 672 P.2d 121; see Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286, 219 Cal.Rptr. 467, 707 P.2d 840 [injunction denied].) If the evidence conflicts, we must construe the evidence in the light most favorable to the trial court's decision. (See Isthmian S.S. Co. v. Nat. Marine etc. Assn. (1953) 40 Cal.2d 433, 434-435, 254 P.2d 578, overruled on another point in Smyrniotis v. Local Joint Executive Bd. (1966) 64 Cal.2d 30, 40, fn. 3, 48 Cal.Rptr. 725, 409 P.2d 949.) However, if no issue of fact is presented, we determine whether the granting of the preliminary injunction was error as a matter of law. (Environmental Coalition of Orange County, Inc. v. Avco Community Developers, Inc. (1974) 40 Cal.App.3d 513, 521, 115 Cal.Rptr. 59.) As the party challenging the injunction on appeal, Gomez bears the burden of showing a clear abuse of discretion or error of law. (See, e.g., IT Corp. v. County of Imperial, supra, at p. 69, 196 Cal.Rptr. 715, 672 P.2d 121 [abuse of discretion].)

Trial courts evaluate two interrelated factors when deciding whether to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail at trial; the second, the interim harm that the plaintiff will likely sustain if the injunction were denied as compared to the harm that the defendant will likely suffer if the injunction were issued. By balancing the respective equities, the trial court should conclude whether--pending trial on the merits--the defendant should or should not be restrained from exercising his or her claimed right. (IT Corp. v. County of Imperial, supra, 35 Cal.3d at pp. 69-70, 196 Cal.Rptr. 715, 672 P.2d 121; see Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 286, 219 Cal.Rptr. 467, 707 P.2d 840 [injunction denied].) ⁹ On a typical appeal from an order granting a preliminary injunction, the question is whether both irreparable harm and the likelihood of prevailing on the merits are established. (See, e.g., Loder v. City of Glendale (1989) 216 Cal.App.3d 777, 782-783, 265 Cal.Rptr. 66; EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179, 184, 188, 158 Cal.Rptr. 579; see also Cohen v. Board of Supervisors, supra, at pp. 286-287, 219 Cal.Rptr. 467, 707 P.2d 840.) Thus, if Pro-Family--as the party that sought the preliminary injunction--has no likelihood of prevailing on the merits at trial, then the trial court committed an error of law and we must reverse the order granting the preliminary injunction.

On appeal, our task is limited to an inquiry into the constitutionality of the challenged regulation. Any question of the wisdom of this regulation is beyond the scope of our review. (See, e.g., Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 411, 128 Cal.Rptr. 183, 546 P.2d 687 [courts rule only on legality of administrative regulation].)

B. Nature of Family Visits

Before we consider the legal issues presented on appeal, it is helpful to keep in mind the nature of family visiting in prison. State administrative regulations require prison officials to establish a plan for family visits. Those regulations provide that family visits are to extend to as many inmates as possible, consistent with institutional security and the categorical restrictions that are being challenged in this action. (See Cal.Code Regs., tit. 15, § 3174.)

Restrictions on an inmate's right of association are an inevitable product of confinement. By the very nature of imprisonment, inmates are necessarily separated from their families and friends. No legislation or case law makes these restrictions invalid. (In re Cummings (1982) 30 Cal.3d 870, 873, 180 Cal.Rptr. 826, 640 P.2d 1101; In re Price 1979) 25 Cal.3d 448, 452-453, 158 Cal.Rptr. 873, 600 P.2d 1330.) More relevant to the specific issue presented in this appeal, there is no substantive "right" to family visits. A prisoner's participation in the family visiting program is a privilege, not a right. (In re Cummings, supra, at p. 873, 180 Cal.Rptr. 826, 640 P.2d 1101; Homan v. Gomez, supra, 37 Cal.App.4th at p. 601, 43 Cal.Rptr.2d 647; see Cal.Code Regs., tit. 15, § 3174, subd. (e).)

The California Supreme Court has stated that prison officials may ban family visits altogether. (In re Cummings, supra, 30 Cal.3d at p. 873, 180 Cal.Rptr. 826, 640 P.2d 1101; see Homan v. Gomez, supra, 37 Cal.App.4th at p. 601, 43 Cal.Rptr.2d 647.) In this appeal, Gomez argues that if the law permits a total ban on family visits, that authority necessarily contains within it the power to enact a partial ban by restricting who may participate in the program. In a recent case, we acknowledged that this "reasoning might be relevant to an argument involving the amendment of regulations by the Department of Corrections...." (Homan v. Gomez, supra, at pp. 601-602, 43 Cal.Rptr.2d 647 [enabling legislation violated single subject rule].) It is against this background that we analyze the several constitutional issues posed in this appeal.

III. EX POST FACTO

A. Facts

First, Gomez challenges the trial court's conclusion that the regulation constitutes an ex post facto application of law and that Pro-Family was thus entitled to a preliminary injunction. (U.S. Const., art. I, § 10, cl. 1; Amend. XIV; Cal. Const., art. I, § 9.) In its second amended complaint, Pro-Family challenged the 1995 regulation ¹⁰ on ex post facto grounds. It alleged that the regulation affected prisoners whose offenses arose before the promulgation of the regulation and made their punishment more burdensome. The regulation thus failed to give inmates fair warning of the effect of their convictions, it alleged. Pro-Family also alleged that the regulation inflicted arbitrary and vindictive retrospective legislation on inmates. It claimed that the regulation violated both the federal and state Constitutions' ex post facto clauses because it lacks a legitimate, nonpunitive governmental purpose such as security or safety. The trial court agreed, concluding that Pro-Family was likely to succeed on the merits of its ex post facto cause of action. It found that the regulation had a probable punitive effect and purpose. B. Punishment

The federal and state ¹¹ constitutional prohibitions on ex post facto laws forbid a state from enacting any law imposing punishment in addition to that prescribed at the time that the criminal act was committed. The purpose of this prohibition is to assure that legislative acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. The ban also restrains governmental power by prohibiting arbitrary and potentially vindictive legislation. (Miller v. Florida (1987) 482 U.S. 423, 429-430, 107 S.Ct. 2446, 2450-2451, 96 L.Ed.2d 351; Weaver v. Graham (1981) 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-965, 67 L.Ed.2d 17; People v. McVickers, supra, 4 Cal.4th at p. 85, 13 Cal.Rptr.2d 850, 840 P.2d 955.) An ex post facto law is void. (See, e.g., Weaver v. Graham, supra, at p. 36, 101 S.Ct. at p. 968.) Thus, the ex post facto clauses protect defendants from...