Serna, In re

• Decision Date: 20 January 1978
• Docket Number: Cr. 30154
• Citation: 143 Cal.Rptr. 350,76 Cal.App.3d 1010
• Court: California Court of Appeals Court of Appeals
• Parties: In re Victor M. SERNA, D.D., Pastor, Michael S. Phillips, D.D., Asst. Pastor, i. e., the Church of the C.O.N.V.I.C.T. Ministers, Board of Directors, U.L.C. Charter # 14588, on Habeas Corpus, Petitioners and Respondents, v. D. J. McCARTHY, Superintendent, E. L. Snyder, Associate Superintendent Treatment Services, California Mens Colony, San Luis Obispo, California, Appellants.

Page 350

143 Cal.Rptr. 350

76 Cal.App.3d 1010

In re Victor M. SERNA, D.D., Pastor, Michael S. Phillips, D.D., Asst. Pastor, i. e., the Church of the C.O.N.V.I.C.T. Ministers, Board of Directors, U.L.C. Charter # 14588, on Habeas Corpus, Petitioners and Respondents, v. D. J. McCARTHY, Superintendent, E. L. Snyder, Associate Superintendent Treatment Services, California Mens Colony, San Luis Obispo, California, Appellants.

Cr. 30154.

Court of Appeal, Second District, Division 5, California.

Jan. 20, 1978.

Hearing Denied March 30, 1978.

[76 Cal.App.3d 1012] Cynthia K. Cohan, Los Angeles, under appointment by the Court of Appeal, for petitioners and respondents.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., Steven H. Kaufmann, Deputy Attys. Gen., for respondents and appellants.

KAUS, Presiding Justice.

Habeas corpus proceeding. The superintendent and associate superintendent at the

California Men's Colony appeal from portions of a trial court order granting relief sought by petitioners Serna and Phillips, prisoners at the Colony.

FACTS

Petitioners are the pastor and assistant pastor in the Church of the C.O.N.V.I.C.T. Ministers, Universal Life Church, Charter Number 14588. An application to the prison administration for permission to expand the activities of their group included a proposal for a bank account to be established outside the prison. The money would be in the nature of religious donations and under the trust of the group's outside secretary-treasurer, who lives in Morro Bay. The prison's assistant superintendent and superintendent denied petitioners' request to send money to the Church's outside bank account, and also denied petitioners' request for recognition of their organization.

The Department of Corrections provides an inmate appeals system, which includes a third and final level appeal to the Director of Corrections, who must respond within 20 working days. (Department of Corrections Administrative Manual ("Manual"), §§ 110.06, 110.12, 110.16.) Petitioners did not appeal the denial of their requests by the superintendent to the director. Instead, they filed a petition for writ of "mandamus" treated as a petition for writ of habeas corpus in the superior court.

Petitioners claimed that they were being unconstitutionally denied the right to hold meetings, to display their church flag, and the only issue involved in this appeal to send money to their outside church bank account. The trial court ordered the superintendent to permit petitioners to conduct religious services, denied the petition with respect to the flag for failure to exhaust administrative remedies, and granted the petition with respect to donations, ordering the superintendent "to allow donations" in accordance with provisions in the director's rules concerning prisoner contributions to outside charities.

The Manual, in the section on Inmate Advisory and Activity Groups, provides that no "inmate activity group may have an outside bank account, . . ." (§ 323.17(c).) The Rules of the Director of Corrections (15 Cal.Adm.Code, 3000 et seq. "Rules") permit prison superintendents to authorize "up to three campaigns for generally recognized charitable causes, annually" (Rules, § 3240) and, if a prisoner asks permission to make a donation, conditions approval on various factors, not challenged herein, such as that the prisoner has not been coerced, is not incompetent, and will not unduly deplete his funds. (Rules, § 3241.) ¹

The effect of the trial court's ruling is that petitioners may transfer funds to their own outside bank account as if it were a "generally recognized charitable cause" the assets of which are presumably not under the control of prison inmates.

DISCUSSION

Petitioners' theory in the trial court was that appellants' refusal to permit petitioners to maintain an outside bank account constituted an impermissible infringement of their religious beliefs and practices.

Appellants raise various contentions concerning the outside bank accounts. Only one need concern us: The trial court erred in granting relief because petitioners failed to exhaust their administrative remedies. We reverse the judgment, and direct the superior court to dismiss the petition.

The well established doctrine of exhaustion of administrative remedies applies to grievances lodged by prisoners (In re Muszalski (1975) 52 Cal.App.3d 500, 503, 508, 125 Cal.Rptr. 286; In re Thompson (1975) 52 Cal.App.3d 780, 783-784, 125 Cal.Rptr 261), even when the grievances involve an alleged constitutional violation. (In re Thompson, supra, 52 Cal.App.3d p. 783, 125 Cal.Rptr. 261.) ²

Nothing in the record suggests that resort to petitioners' administrative remedies would have been futile. Petitioners were entitled, as stated, to appeal the denial by the superintendent directly to the Director of the Department. (Manual, § 110.06) and to obtain a ruling within 20 days (Manual, § 110.16.) A court "cannot presume" that an administrator "having adopted a particular rule or policy in like cases in the past, would necessarily have applied the same rule" in the next case. (Gantner & Mattern Co. v. California E. Com. (1941) 17 Cal.2d 314, 318, 109 P.2d 932, 934.) In this case, although prison regulations forbid an "inmate activity group" to maintain an outside bank account (supra, fn. 1) neither the court nor petitioners know whether the director would apply a different standard if he found that the refusal to permit petitioners to maintain a bank account would unduly infringe on their freedom of religion.

Finally, nothing in the record suggests that to require petitioners to exhaust their administrative remedies would result in "irreparable injury." The exhaustion doctrine applies to claims alleging an infringement on religious beliefs or practices (Waddell v. Alldredge (3rd Cir. 1973) 480 F.2d 1078, 1079) even where the infringement is direct, immediate and, if not prevented, irremediable (Jihaad v. Carlson (E.D.Mich.S.D.1976) 410 F.Supp. 1132, 1134 (Requirement that a Black Muslim shave contrary to religion)), and has been applied to situations in which the impact on the prisoner may be far more overwhelming than the right to open an outside bank account. (In re Muszalski, supra, 52 Cal.App.3d 500, 125 Cal.Rptr. 286 (records for parole consideration); United States ex rel. Sanders v. Arnold (3rd Cir. 1976) 535 F.2d 848, 851 (parole revocation); Jones v. Carlson (5th Cir. 1974) 495 F.2d 209, 210 (litigation correspondence).)

Reversed.

ASHBY, J., concurs.

STEPHENS, Associate Justice.

I dissent.

The admirable brevity of the statement of facts as contained in the majority opinion, while adequate for the limited analysis of the single issue therein considered, is inadequate in disposing of each of the issues raised on appeal. Necessarily then the dissent rephrases the facts and issues.

Victor M. Serna and Michael S. Phillips are Pastor and Assistant Pastor of the Church of the C.O.N.V.I.C.T. ¹ Ministers ("Church"), an inmate religious group at the California Men's Colony whose activities include a program of social rehabilitation for young people who might otherwise turn to crime. In order to expand the Church's religious program, Serna and Phillips asked the prison administrators for, among other things, permission to conduct religious services and make donations to an outside bank account set up to receive funds raised for the Church's youth rehabilitation program. After their request was denied by the local prison authorities, Serna and Phillips, proceeding in propria persona, petitioned the Superior Court of San Luis Obispo County for relief, alleging infringement of their constitutional right to the free exercise of religion. Although characterized by Serna and Phillips as a petition for a writ of mandamus, their request for relief was construed by the superior court as a petition for writ of habeas corpus.

Following an evidentiary hearing, the Hon. Harry E. Woolpert granted the petitioners a substantial portion of the relief sought, ordering the Men's Colony to: (a) provide the Church with facilities necessary for conducting their religious services and (b) permit the Church members to make donations to the outside bank account. At the same time, the judge declined to order return of a Church flag due to the inmates' failure to exhaust their administrative remedies and refused an order stopping alleged interference with Church members' mail due to a failure of proof on that issue.

The Attorney General now appeals from that portion of the superior court's order permitting donations to an outside bank account. As set forth below in detail, I would find that the superior court committed no error in issuing that order.

Faced at the outset is the question raised by appellants of whether the superior court properly took jurisdiction of this action even though respondents had not exhausted their administrative remedies.

1. Exhaustion of Administrative Remedies

Appellants contend that the trial court erred in granting habeas corpus relief because the respondents failed to exhaust their administrative remedies.

The requirement that one exhaust a well-defined system of administrative remedies before turning to the court for relief is a settled legal doctrine. (McKart v. United States (1969) 395 U.S. 185, 193-195, 89 S.Ct. 1657, 23 L.Ed.2d 194; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291-296, 109 P.2d 942; In re Muszalski (1975) 52 Cal.App.3d 500, 503, 125 Cal.Rptr. 286.) Indeed, a court that hears a cause which is prematurely withdrawn from an administrative appeals procedure is considered to be without jurisdiction. (Hesperia Land Development Co. v. Superior Court (1960) 184 Cal.App.2d 865, 876, 7 Cal.Rptr. 815.) Adherence to the exhaustion principle insures deference to the expertise and discretion of administrative agencies and...