Small v. Horn

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: SAYLOR, Justice.
• Citation: 722 A.2d 664,554 Pa. 600
• Parties: Elwood SMALL, Brian M. Meyers, Jon E. Yount, Abdullah Muhammed, George Feigley, Clayton Thomas, Kevin Lively, Marshall Hale and Stephan Williams v. Martin F. HORN, Secretary, Department of Corrections. Appeal of Elwood Small, Jon E. Yount and Bryan Galvin (Intervenor).
• Decision Date: 23 December 1998

722 A.2d 664
554 Pa. 600

Elwood SMALL, Brian M. Meyers, Jon E. Yount, Abdullah Muhammed, George Feigley, Clayton Thomas, Kevin Lively, Marshall Hale and Stephan Williams
v.
Martin F. HORN, Secretary, Department of Corrections.
Appeal of Elwood Small, Jon E. Yount and Bryan Galvin (Intervenor)

Supreme Court of Pennsylvania.

Submitted September 8, 1998.

Decided December 23, 1998.

722 A.2d 666

Elwood Small, Pro se, Appellant

Jon E. Yount, Pro Se, Appellant.

Bryan Galvin, Pro Se, Intervenor.

Heather Faust, Camp Hill, for Martin F. Horn, Appellee.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

722 A.2d 665

OPINION

SAYLOR, Justice.

This is a direct appeal from an order of the Commonwealth Court sustaining preliminary objections of the Department of Corrections in an action by inmates confined in a state prison, who seek to invalidate the Department's revocation of their permission to wear civilian clothing.

In 1978 the United States District Court for the Eastern District of Pennsylvania approved a consent decree (the "Decree") entered into by the Department of Corrections ("Department") and a court-certified plaintiff class known as the Imprisoned Citizens Union. Under the Decree, the Department was required to permit prisoners to wear civilian clothing when housed in the general population, subject to the right to impose reasonable regulations with respect to prisoner clothing based on safety, sanitary and security considerations. The district court subsequently terminated the Decree on April 27, 1998, after Congress, in 1996, passed the Prison Litigation Reform Act.¹

The official regulations governing state correctional institutions and facilities are published at 37 Pa.Code §§93.1-93.13. The latest revision of these regulations was promulgated in 1984, in accordance with the notice and comment requirements of the Commonwealth Documents Law, 45 P.S. §§1102-1602 ("Documents Law"), and the regulatory oversight provisions of the Regulatory Review Act, 71 P.S. §§745.1-745.15 ("Review Act"). The regulations are silent on inmate clothing, stating only that "those items listed on the current Catalogue Purchase list may be purchased [by family and friends]." 37 Pa.Code §93.4(b).

Prior to 1997, the Department's policy on prisoner clothing was set forth in a Department directive issued in accordance with the Consent Decree, and known as "DC-ADM 815." This directive listed numerous items of civilian clothing that prisoners could either purchase from outside vendors, such as Sears or J.C. Penney's, or have family members bring to them.

On February 26, 1997, the Department amended DC-ADM 815 by issuing two new

722 A.2d 667

bulletins. The first one, DC-ADM 815-4, provides a restricted list of garments that inmates are allowed to purchase; these items are more in the nature of prison uniforms than civilian attire. The second bulletin, DC-ADM 815-5, states that effective November 27, 1997, all non-conforming apparel must be removed from the prisons. Inmates have the option of sending these garments home, donating them to charity, or having them destroyed. After that date, if a prisoner is discovered to possess non-conforming clothing, such clothing would be considered contraband, and the prisoner would be subject to disciplinary measures. According to the Department, these changes were made out of a concern for public safety and prison security, after six inmates escaped from a Pennsylvania prison the previous month. The Department alleges that possession of civilian clothing played a role in the escape

On February 23, 1998, Appellants, nine inmates at the State Correctional Institution at Huntingdon, filed a pro se petition for review in the Commonwealth Court, invoking that court's original jurisdiction and naming the Secretary of the Department ("Secretary") as defendant. The complaint contained three counts. In Count I, Appellants asserted that DC-ADM 815-4 and 815-5 (the "Bulletins") are regulations and as such should have been promulgated pursuant to the notice-and-comment provisions of the Documents Law and the regulatory oversight provisions of the Review Act. Appellants requested relief in the form of a court order: (i) declaring that the Bulletins were unlawfully promulgated, (ii) enjoining the Department from enforcing them, and (iii) requiring the Department to hold hearings to determine the value of clothing confiscated from Appellants.²

In Count II, Appellants asserted that the Decree created property rights in their favor to possess civilian clothing, and that the Bulletins deprived them of these rights without due process of law as guaranteed by the Pennsylvania Constitution. In this count, Appellants quoted the Pennsylvania Constitution's "takings" clause,³ but the property interest that they claimed was taken was apparently not the civilian clothing itself, but the right to possess civilian clothing that was allegedly vested in them by the Decree. Appellants requested relief in the form of a court order declaring: (i) that various provisions of the Decree create "personal and property rights" in favor of Appellants, and (ii) that Appellants' property interest in their civilian clothing cannot lawfully be terminated without a hearing and "just compensation."

Finally, in Count III of their complaint, Appellants reiterated their claim that property was taken from them without due process of law, but in this count the property interest at issue appears to have been the clothing itself. Appellants asked for relief in the form of a "final decree" by the Commonwealth Court, requiring: (i) the Department to conduct hearings to determine the value of the clothing that was confiscated from Appellants, and (ii) compensation in the form of replacement clothing or "financial reparations."

Bryan Galvin, an inmate at SCI-Huntingdon, timely filed a petition to intervene as plaintiff in the case.

On March 25, 1998, the Secretary filed preliminary objections in the nature of a demurrer, in which he averred that the Department is not required to promulgate regulations when it adopts policies affecting prisoners, and that, because prisoners can choose to send their non-conforming clothing home, donate it elsewhere, or have it destroyed, the Bulletins do not work an unconstitutional taking. The Secretary contended that, because the privilege of wearing civilian clothing in prison was eliminated by the Department pursuant to a policy applicable to all inmates, no due process concerns are implicated.

On May 8, 1998, the Commonwealth Court entered a per curiam memorandum and order sustaining the Secretary's preliminary

722 A.2d 668

objections, dismissing Appellants' petition for review, and dismissing Bryan Galvin's petition to intervene as moot. In its memorandum opinion, the court noted that it was without jurisdiction to enforce a federal consent decree. It also found that because the prisoners have the option of sending their non-conforming attire home, they are not deprived of ownership of their property, and hence no taking has occurred. Finally, the court observed that the Documents Law exempts from its notice-and-comment provisions any regulation pertaining to agency organization, management or personnel. Finding that the Bulletins pertain to prison management, the court concluded that their promulgation absent notice and a public comment period did not run afoul of the Documents Law. The court did not address whether the Bulletins should have undergone the Review Act's regulatory oversight procedures

The issues, as framed by Appellants, are as follows:

a. Are DC-ADM 815-4 and DC-ADM 815-5 administrative regulations subject to the publication requirements of the Commonwealth Documents Law and Regulatory Review Act?

b. Did the Department of Corrections ignore the Pennsylvania Code and its own regulations in promulgating DC-ADM 815-4 and DC-ADM 815-5?

c. Did the Department of Corrections' implementation of DC-ADM 815-4 and DC-ADM 815-5 violate contractual aspects of the [ICU] consent decree that are enforceable by the Pennsylvania Judiciary, particularly the Commonwealth Court?

d. Did deprivation of ownership of Appellants' civilian-clothing personal property pursuant to DC-ADM 815-5—either via confiscation or coerced disposal of any interest in such property—without just compensation deny due process of law guaranteed by the Constitution of Pennsylvania?

e. Did the court below err by sustaining [the Secretary's] preliminary objections in the nature of a demurrer?

f. Did the court below err by dismissing Appellant Bryan Galvin's petition to intervene?

An appellate court should affirm an order of a trial court (here, the Commonwealth Court) sustaining preliminary objections in the nature of a demurrer where, when all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts are accepted as true, the plaintiff is not entitled to relief. Lampus v. Lampus, 541 Pa. 67, 660 A.2d 1308 (1995). The court need not, however, accept any of the complaint's conclusions of law or argumentative allegations. Willet v. Pennsylvania Med. Catastrophe Loss Fund, 549 Pa. 613, 702 A.2d 850 (1997).

In Count I, entitled "Jurisdiction," Appellants attempt to state a claim based on the Documents Law and the Review Act by alleging deficiencies in the procedure by which the Department promulgated the Bulletins. In particular, Appellants contend that the Bulletins should have been promulgated in accordance with the Document Law's notice-and-comment procedures. See 45 P.S. §§1201, 1202. Appellants also claim that, under the Documents Law, the Bulletins should have been submitted to the Department of Justice for approval as to their legality, see 45 P.S. §1205,⁴ and should have been filed with the Legislative Reference Bureau, see 45 P.S. §1207. Appellants claim that the Department's failure to follow these procedures renders the...