Sterling v. Cupp

• Decision Date: 04 March 1981
• Citation: 625 P.2d 123,290 Or. 611
• Parties: , 31 Fair Empl.Prac.Cas. (BNA) 427, 32 Empl. Prac. Dec. P 33,822 David J. STERLING, Thomas E. Capps, and Wilbur G. Hixson, Respondents, v. Hoyt C. CUPP, Supt., Oregon State Penitentiary, Robert J. Watson, Administrator of the Corrections Division, and Brillante Murphy, Correctional Officer, Oregon State Penitentiary, Petitioners, and Nedra Bagley, Correctional Officer, Oregon State Penitentiary, Defendant, and Janice Derr, Lauritto Trujillo, Marcia Rovai, Brenda Dibala, Sandra Rushmore, and Dorothy Discher, Intervenor-Petitioners. TC 108452; CA 13246; SC 26907; SC 26915. . *
• Court: Oregon Supreme Court

Page 123

625 P.2d 123

290 Or. 611, 31 Fair Empl.Prac.Cas. (BNA) 427,

32 Empl. Prac. Dec. P 33,822

David J. STERLING, Thomas E. Capps, and Wilbur G. Hixson, Respondents, v. Hoyt C. CUPP, Supt., Oregon State Penitentiary, Robert J Watson, Administrator of the Corrections Division and Brillante Murphy, Correctional Officer, Oregon State Penitentiary, Petitioners and Nedra Bagley, Correctional Officer, Oregon State Penitentiary, Defendant and Janice Derr, Lauritto Trujillo, Marcia Rovai, Brenda Dibala, Sandra Rushmore, and Dorothy Discher, Intervenor-Petitioners.

TC 108452; CA 13246; SC 26907; SC 26915.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted June 25, 1980.

Decided March 4, 1981.

[290 Or. 612-B] J. Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for petitioners. With him on the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Barbara A. Brainard, Certified Law Student.

Terry A. Pressler, Salem, argued the cause and filed a brief for intervenor-petitioners.

Jossi Davidson, Silverton, argued the cause and filed a brief for respondents.

LINDE, Justice.

Plaintiffs, who are male inmates of the Oregon State Penitentiary, sued to enjoin Superintendent Cupp and other prison officials from assigning female guards to duties which involve frisking male prisoners or observation of prisoners in showers or toilets, or for such other relief as the court deemed proper. After allowing a number of female corrections officers to intervene as parties defendant, the court enjoined defendants Cupp and Watson from "assigning female correctional officers to any position in which the job description or actual duties include frisks or patdowns of male prisoners, except in emergency situations." On appeal, defendants contended respectively that no constitutional interest of plaintiffs was violated and that the order contravened the equal employment rights of female corrections officers. The Court of Appeals affirmed the order, 44 Or.App. 755, 607 P.2d 206 (1980), and we allowed review. With some textual modification, and subject to such further motion as defendants may make in the circuit court, we affirm the order.

For clarity, we refer to the parties as the prisoners, OSP, and the officers rather than by their respective positions as parties in this suit.

I. The Constitutional Premises.

The prisoners' challenge to the legality of subjecting them to personally offensive touching or observation by guards of the opposite sex invoked a number of provisions of the Oregon as well as of the United States Constitution. ¹ The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law. See, e. g., State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or. 277, 613 P.2d 23 (1980); State v. Spada, 286 Or. 305, 594 P.2d 815 (1979), and cf. State v. Tourtillott, 289 Or. 835, 618 P.2d 423 (1980). ² The Court of Appeals decided the case by reference to the prisoners' "constitutional right of privacy," 44 Or.App. at 757, 607 P.2d 206, explaining in a footnote that while "(t)he source of this right is not entirely clear," the court meant the phrase in its federal usage derived from Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). This premise drew a dissent from two members of the court. ³ That the court found "privacy" a difficult premise for decision is not surprising. When a single term is stretched to reach from a civil claim against undesired disclosure or publicity, see Prosser, Law of Torts 802 (4th ed. 1971); White, Tort Law in America 173-176 (1980), by way of a constitutional barrier against government intrusion into activities normally conducted in private, see Griswold v. Connecticut, supra, (marital use of contraceptives), and a privilege to engage at home in conduct forbidden elsewhere, see Ravin v. State, 537 P.2d 494 (Alaska 1975) (use of marijuana at home), cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (possession of pornography at home), to claims of personal autonomy in choices of conduct, see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (abortion) and choices of domestic associations, see City of Santa Barbara v. Adamson, 27 Cal.3d 123, 610 P.2d 436, 164 Cal.Rptr. 539 (1980) (residential "family" of unrelated individuals), the law is bound to pay a price in clarity and cogency. One may pause at the delegation to courts implicit in adopting such a protean and emotive term as a test of the validity of laws. ⁴ "A concept in danger of embracing everything is a concept in danger of conveying nothing." Tribe, American Constitutional Law 888-889 (1976). Thus the OSP officials argue that privacy is an incongruous constitutional claim for prisoners in institutions whose very functions imply surveillance, while the prisoners invoke the concept of privacy in the sense in which bodily parts and functions are considered "private" in our and other cultures.

Though "privacy" in this sense may fit under that federal rubric even in prisons, there is no need to struggle with its difficulties here. They arise because contemporary claims of prisoners' rights, like many others, routinely have been taken to federal courts, so that the judicial opinions and the secondary commentary that counsel bring before state courts, as in this case, tend to repeat solely federal premises. ⁵ But the United States Constitution's concern with penal principles as such does not go beyond bills of attainder and "cruel and unusual punishments." U.S.Const. Art. I, §§ 9, 10, Amend. 8. Its restraints on state prison practices can be derived only from generally applicable constitutional guarantees, including due process and equal protection. U.S.Const. Amend. 14. State constitutions, by contrast, often contain clauses expressly directed toward guaranteeing humane treatment of those prosecuted for crime.

The Oregon Constitution long has included in its Bill of Rights, besides the prohibition of cruel and unusual punishments, no less than five such provisions that have no federal parallel. It undertakes to guarantee that punishment shall be designed for reformation and not "vindictive justice" ⁶ and shall not reach beyond the guilty individual, ⁷ to forbid excessive fines and disproportionately heavy penalties, ⁸ and, most relevant here, to confine "rigorous" treatment of prisoners within constitutional bounds of necessity. Or.Const. Art. I, § 13. ⁹

Provisions like these have antecedents as early as New Hampshire's 1783 constitution, ¹⁰ coming to Oregon by way of Ohio and Indiana. ¹¹ They reflect a widespread interest in penal reform in the states during the post-Revolutionary decades. ¹² The clauses are not as universal as more familiar parts of the bills of rights, and ideas of humanitarian "reform" have changed with time and among the states. The Pennsylvania Constitution, among the first, provided that the penal laws were to be reformed and punishments made less "sanguinary" (i. e. bloody) by substituting imprisonment at hard labor, open for observation by the public. Penn. Frame of Government §§ 38, 39 (1776). ¹³ Practice often did not follow aspirations. Even in theory, a "Golden Age of Penology" could not be discerned before the 1870's. ¹⁴ In 1870 the Tennessee Constitution provided for "the erection of safe and comfortable prisons, the inspection of prisons, and the humane treatment of prisoners." Tenn.Const. Art. I, § 32. But while constitutional texts differ, the present point is that many states thought a commitment to humanizing penal laws and the treatment of offenders to rank with other principles of constitutional magnitude independently of any concern of the Congress or of Madison's Bill of Rights. The same commitment took the form of two interstate compacts adopted by Oregon and enacted as statutes, which provide that inmates of correctional institutions "shall be treated in a reasonable and humane manner." ORS 421.245, Art. IV(5); ORS 421.284, Art. IV(e). Oregon's article I, section 13 is in this tradition. ¹⁵

It may well be that the interest asserted by the prisoners in this case can be brought within one of the kinds of "privacy" said to be protected by unexpressed penumbras of the United States Constitution. See Gunther v. Iowa State Men's Reform., 612 F.2d 1079 (8th Cir. 1980) cert. den. 446 U.S. 966, 100 S.Ct. 2942, 64 L.Ed.2d 825 (1980). But in three respects the guarantee not to be "treated with unnecessary rigor" in Oregon's article I, section 13, is a more cogent premise than such a federal "right of privacy."

First, it has an unquestioned source in a provision expressly included in the political act of adopting the constitution.

Second, that provision is addressed specifically to the treatment of persons "arrested, or confined in jail." Unlike rights of privacy, there can be no argument that rights under this guarantee are forfeited by conviction of crime or under lawful police custody, as those are the circumstances to which its protection is directed.

Third, "privacy" poses the paradox that its elasticity in the face of important public policies contradicts its theoretical premise as a right so fundamental as to be implied in the national Constitution; by contrast, article I, section 13, itself makes necessity the test of the practices it controls.

For these reasons, although in this case the considerations under "privacy" or under article I, section 13, are much the same, we proceed under the section of our own constitution directly addressed to prison practices.

II. Opposite-sex Search as Indignity.

The guarantee against "unnecessary rigor" is not directed specifically at methods or conditions of "punishment,"...