Sanchez v. Warden, State Prison

• Citation: 214 Conn. 23,570 A.2d 673
• Decision Date: 20 February 1990
• Docket Number: No. 13820,13820
• Court: Supreme Court of Connecticut
• Parties: Andres SANCHEZ, et al. v. WARDEN, STATE PRISON.

Page 673

570 A.2d 673

214 Conn. 23

Andres SANCHEZ, et al. v. WARDEN, STATE PRISON.

No. 13820.

Supreme Court of Connecticut.

Argued Dec. 12, 1989.

Decided Feb. 20, 1990.

Richard T. Biggar, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for appellant-appellee (respondent).

David L. Kent, for appellees and appellee-appellant (petitioners and petitioner Joseph Wilson).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and GLASS, JJ.

SHEA, Associate Justice.

The principal issue in this appeal is whether the first amendment to the United States constitution ¹ was violated when the respondent, the warden of the Connecticut Correctional Institution at Somers, denied the petitioners ² access to radios with sound emitting speakers, despite having allowed them to possess radios that could be listened to by means of headphones. ³ We hold that the first amendment was not implicated by the respondent's policy and conclude, therefore, that the trial court erred when it ordered the respondent to make regular radios available to all prisoners at Somers.

These actions, consolidated for trial before the Superior Court, Axelrod, J., had as their origin a habeas corpus action brought by petitioner Wilson in 1986, seeking, inter alia, the return of an "AM/FM Radio" and color television set that had been confiscated by the respondent. After a trial held on August 8, 1986, the court, O'Neill, J., ordered that the "radio/stereo/recorder" be returned to Wilson and that "Mr. Wilson's family or friends [could] collect the television set that was taken."

In the wake of this order, petitioners Wood, Hansen, Veal, Walker and Sanchez each filed, on various dates during the period from September, 1986, through February, 1987, a petition for a writ of habeas corpus, alleging that the respondent had denied them access to radios essentially similar to the radio that had been returned to Wilson. The respondent meanwhile, on September 25, 1986, moved to set aside Judge O'Neill's order returning Wilson's radio. In an affidavit supporting the motion, counsel for the respondent asserted that it had "come to respondent's attention ... that the radio in question ha[d] a recording capacity." The respondent claimed that the judgment should be set aside since the issue of a recording device had not been considered at the trial before Judge O'Neill and that "[s]uch a recording capacity [could] well threaten the security of [the] petitioner and other inmates at CCI, Somers." After considering an objection filed by Wilson, the trial court, Ripley, J., set aside the prior judgment "insofar as it pertains to disposition of the recording device."

In response to the petitioner Wilson's motion for a full hearing, motion to show cause, motion for judgment and application for a writ of mandamus, the trial court, Mack, J., held a hearing on March 6, 1987. Wilson stated at this hearing that the purpose of his motions was to "set the verdict [of Judge O'Neill] back in its place." Wilson charged that counsel for the respondent had filed the supporting affidavit in bad faith, since Judge O'Neill had, as evidenced by the transcript of the prior trial, been aware of the recording device. On March 16, 1987, Judge Mack denied Wilson's various motions and ordered that a new trial be conducted on the issue of the recording device.

The respondent, on May 9, 1988, moved to quash each of the pending petitions, alleging that they raised issues "which [were] not cognizable in habeas corpus." Each motion was denied by the trial court, Axelrod, J., on May 11, 1988. The respondent then filed a return in each case, asserting that each petitioner was "not allowed to possess a 'boom-box' type radio/recorder at CCI, Somers because the possession of such radios is a threat to the security of inmates, staff and visitors...." The trial court then granted, also on May 11, the respondent's motion to consolidate all of the pending cases. The trial took place over the course of two days, May 11 and May 13, 1988. On the latter date, the trial court canvassed the petitioners and allowed an amendment to each of the petitions "to include a First Amendment violation as part of the claims."

In its memorandum of decision, the trial court concluded that "access to a radio is a protected First Amendment right," and, on the basis of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), and Gaines v. Manson, 194 Conn. 510, 481 A.2d 1084 (1984), granted the petitions and ordered that the respondent "forthwith make available for sale at the CCI, Somers commissary regular sound emitting radios that do not require the use of earplugs to be heard." The respondent has appealed from this judgment claiming that the trial court erred in: (1) concluding that the petitioners had a first amendment right to possess radios with external speakers; and (2) hearing the habeas corpus petitions, since they involved no issue affecting the constitutionality of the petitioners' confinement. The petitioner Joseph Wilson has filed a cross appeal in which he claims that the trial court erred in setting aside the prior judgment rendered in his favor. Further facts pertinent to these issues will be set forth in the opinion that follows. We find error on the appeal and no error on the cross appeal.

I

In his principal claim of error, the respondent asserts that: (1) the trial court erred in concluding that there was any constitutional difference between regular radios and headphone radios; and (2) even if there were such a difference, the right to possess a regular radio was denied in this case on the basis of a valid penological security interest. We agree with the first of the respondent's assertions and, therefore, need not address the merits of the second.

The trial court found the following relevant facts. Wilson sought the return of his boom box radio, which included a recording device. Petitioner Sanchez sought to possess a radio similar to Wilson's, with a recording device. Sanchez claimed that the headphone radio made available to him through the prison commissary "hurt his ears." Petitioner Walker also claimed that a headphone radio hurt his ears, and sought possession of a regular radio with a recording device, albeit one capable of recording radio broadcasts only, rather than live conversations. Petitioner Veal claimed that use of a headphone radio could prevent him from hearing an "emergency freeze order" while in the open yard at the prison. Veal sought the right to purchase a regular radio, similar to those that previously had been sold in the prison commissary. Petitioner Hansen sought the return of a radio he had purchased at the Whiting Forensic Institute prior to his transfer to Somers. The radio did not include a recording device, as it had been removed prior to Hansen taking possession of the radio. Petitioner Wood sought the return of a radio he had possessed when he arrived at Somers. The radio had dual speakers and a recording device. Wood was informed by prison officials that he could not retain the radio due to its size, the number of speakers and the recording device.

The trial court also found that "[t]he Somers prison radio regulation in issue prohibits all inmates from obtaining a [regular radio] after arriving at Somers, while allowing all inmates who had [regular] radios in Somers prior to this regulation being adopted to retain such radios, ⁴ and allowing all inmates who arrive at Somers, with a [regular] radio obtained from a community correctional center that sells such radios to retain such radios." ⁵ Further, inmates could transfer their regular radios to other inmates upon leaving the institution and could have regular radios repaired at the prison. The only reason advanced by the respondent for this apparent disparity in the type of radios that could be possessed by inmates was a desire "not to impose on such inmates [possessing regular radios] the cost of purchasing a second radio after arriving at Somers." The trial court determined initially that "access to a radio is a protected First Amendment right" and, further, that "radio networks and broadcasters are protected by the First Amendment." On the basis of the facts set forth above, the trial court then concluded that the respondent's radio policy interfered with the petitioners' access to regular radios and also placed "incidental and consequential restrictions" on the receipt of the broadcasters' transmissions. Having found restrictions upon constitutionally protected rights of free speech, the trial court concluded: (1) that the regulation, as it related to the petitioners, was constitutionally invalid under the "reasonably related to legitimate penological interests" standard of review announced by the United States Supreme Court in Turner v. Safley, supra, 482 U.S. at 89, 107 S.Ct. at 2261-62; and (2) that the regulation, as it related to broadcasters, was invalid under either the "least restrictive alternative" standard of review set forth in Procunier v. Martinez, supra, 416 U.S. at 413-14, 94 S.Ct. at 1811-12, or the "reasonably related" standard of Turner. ⁶ The trial court did conclude, however, that the petitioners' claims regarding boom box radios and recording devices did not raise constitutional issues. ⁷ The court ordered, therefore, only that the respondent make regular radios available to all inmates at Somers.

We have no occasion either to agree or to disagree with the thoughtful and thorough review undertaken by the trial court, since we conclude that on this record the petitioners have failed to meet their burden of establishing an imposition on their constitutionally protected right to free speech. See Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987). Assuming, for the purpose of this appeal, that ...