Thompson v. Department of Corrections

Opinion

The superior court issued a preliminary injunction ordering the California Department of Corrections (CDC) to permit the spiritual adviser of an inmate facing execution to remain with him until 25 minutes before execution, rejecting the CDC’s contention that general security concerns necessitated the adviser’s departure 45 minutes before execution. The ,, Court of Appeal dismissed the CDC’s appeal, holding that the appeal fell within this court’s exclusive jurisdiction over appeals in capital cases. We conclude that the Court of Appeal did have jurisdiction to hear this civil matter, and that the trial court erred in issuing the preliminary injunction.

Article VI, section 11 of the California Constitution provides: “The Supreme Court has appellate jurisdiction when judgment of death has been pronounced. With that exception courts of appeal have appellate jurisdiction when superior courts have original jurisdiction . . . and in other causes prescribed by statute.” (Italics added.) When plaintiffs filed this action, Thompson was under a judgment of death. Plaintiffs challenged not the legality of that judgment but the time at which Thompson’s spiritual adviser of choice had to leave him before the execution. Contrary to the Court of Appeal’s conclusion, this issue does not fall within our exclusive jurisdiction over death penalty appeals, as we explain below.

The principles of constitutional interpretation are similar to those governing statutory construction. In interpreting a constitution’s provision, our paramount task is to ascertain the intent of those who enacted it. (Davis v. City of Berkeley (1990) 51 Cal.3d 227 , 234 [ 272 Cal.Rptr. 139 , 794 P.2d 897 ].) To determine that intent, we “look first to the language of the constitutional text, giving the words their ordinary meaning.” (Leone v. Medical Board (2000) 22 Cal.4th 660 , 665 [ 94 Cal.Rptr.2d 61 , 995 P.2d 191 ].) If the language is clear, there is no need for construction. (Delaney v. Superior Court (1990) 50 Cal.3d 785 , 798 [ 268 Cal.Rptr. 753 , 789 P.2d 934 ].) If the language is ambiguous, however, we consider extrinsic evidence of the enacting body’s intent. (ITT World Communications, Inc. v. City and County of San Francisco (1985) 37 Cal.3d 859 , 868 [ 210 Cal.Rptr. 226 , 693 P.2d 811 ]; see also Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855 , 866 [ 167 Cal.Rptr. 820 , 616 P.2d 802 ]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208 , 245-246 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ].)

The phrase in article VI, section 11 of the California Constitution (article VI) conferring on this court exclusive appellate jurisdiction “when judgment

The current phrase in article VI, section 11 granting this court exclusive appellate jurisdiction “when judgment of death has been pronounced” originated in former article VI, sections 4 and 4b.

Section 4 of former article VI was first enacted as part of the Constitution of 1879, when there were no Courts of Appeal. It gave this court appellate jurisdiction “in all criminal cases prosecuted by indictment, or information in a Court of record on questions of law alone.” (Ibid.)

In 1904, when a provision was added to the California Constitution authorizing the creation of the Courts of Appeal, section 4 of former article VI was amended to provide: “The Supreme Court shall have appellate jurisdiction on appeal from the superior courts ... on questions of law alone, in all criminal cases where judgment of death has been rendered . . . .” (Cal. Const., former art. VI, § 4, as amended Nov. 8, 1904.) The amended section also gave the Courts of Appeal jurisdiction “in all criminal cases prosecuted by indictment or information . . . excepting criminal cases where judgment of death has been rendered.” {Ibid.) This language was retained when former article VI, section 4 was again amended in 1918. {Id., as amended Nov. 5, 1918.)

In 1928, section 4 of former article VI was divided into four parts: sections 4, 4a, 4b, and 4c. Section 4 retained the phrase conferring on this court appellate jurisdiction “in all criminal cases where judgment of death has been rendered . . . .” (Cal. Const., former art. VI, § 4, as amended Nov. 6, 1928.) Moved into section 4b was the phrase that originally appeared in the 1904 amendment of section 4 describing the appellate jurisdiction of the Courts of Appeal as applying to “all criminal cases . . . except where judgment of death has been rendered.” (Cal. Const., former art. VI, § 4b, as adopted Nov. 6, 1928.)

Thus, beginning in 1904, when the California Constitution authorized creation of the Courts of Appeal, section 4 of former article VI limited this court’s exclusive appellate jurisdiction in matters relating to capital punishment to “criminal cases.” Under that section, the appeal in this case would not have fallen within this court’s exclusive capital jurisdiction,

The Court of Appeal’s premise—that this case could be decided only by interpreting our Williams order—is faulty. In California Assn, of Psychology Providers v. Rank (1990) 51 Cal.3d 1 , 9 [ 270 Cal.Rptr. 796 , 793 P.2d 2 ], we said that “our minute orders . . . cannot serve as precedent to guide future decisions.” By this language, we did not intend to preclude trial courts and the Courts of Appeal from considering our minute orders if doing so would assist them in rendering a decision. The statement in question is simply a reminder that, unlike our decisions rendered after granting review, hearing oral argument, and preparing a written opinion, our minute orders are not binding precedent. (Cf. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ].) Because our Williams order is not binding precedent, it was not essential for the Court of Appeal to interpret it to decide this appeal.

Moreover, assuming for the sake of argument that to decide the appeal here, the Court of Appeal would have had to construe “ambiguities” it perceived in our Williams order, the necessity of doing so would not necessarily be “encroaching” upon our jurisdiction, contrary to the Court of Appeal’s conclusion. Courts of Appeal must, and do, interpret the scope of this court’s decisions. If they reach conflicting interpretations, it is up to this court to resolve the conflict.

Even if the Court of Appeal had been right in concluding it lacked jurisdiction to hear the matter, it erred in dismissing the appeal. As mentioned earlier, the notice of appeal that defendants filed in the superior court

Ill

Also encompassed within our grant of review is defendants’ contention that the trial court erred in issuing a preliminary injunction ordering defendants to allow Reverend Margaret Harrell to remain with Thompson until he was taken to the execution chamber. Preliminarily, we note two issues not presented in this case.

First, plaintiffs do not allege that inmate Thompson’s religious views differed materially from those of the “state employee spiritual advisor” whom defendants would have permitted to stay with Thompson until he was taken to the execution chamber, if Thompson had desired such presence. Indeed, plaintiffs describe neither Thompson’s religious views (presumably, Thompson had Christian beliefs, based on his request that Reverend Harrell give him communion) nor those of the prison’s spiritual adviser. Rather, they argue that Thompson was entitled to have Reverend Harrell with him on the night of his execution because they had developed a “longstanding, intimate spiritual relationship.” Thus, we need not consider here whether, in the last minutes before an execution, prison officials may deny the prisoner access to a spiritual adviser of choice and permit only the presence of a spiritual adviser whose views differ significantly from the inmate’s.

Second, at an early stage in this litigation defendants argued that Reverend Harrell had to leave Thompson six hours before his execution. But defendants made no showing that legitimate penological interests required Reverend Harrell’s removal at that time, and they have now abandoned that claim. Instead, defendants contend only that the trial court should have permitted them to require Reverend Harrell to leave Thompson 20 minutes before Thompson’s departure for the execution chamber, roughly 45 minutes before his execution.

When a prisoner is to be executed by lethal injection, San Quentin Prison observes this internal regulation: “Approximately 45 minutes prior to execution, the following procedure will be followed: HD (1) The Warden, Associate Warden, Unit III and two (2) physicians arrive at the execution via the

Before its amendment in 1994, section 2600 provided: “A person sentenced to imprisonment in a state prison may, during any such period of confinement, be deprived of such rights, and only such rights, as is [s?c] necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public.” We construed this section in In re Arias (1986) 42 Cal.3d 667 [ 230 Cal.Rptr. 505 , 725 P.2d 664 ]. In that case, inmates of the California Youth Authority (CYA) alleged that a plan to install an electronic listening device in the chapel of the facility in which they were housed would deny them their right to freedom of religion, thereby violating section 2600. We set forth a three-step inquiry: “(1) Are any ‘rights’ implicated? (2) If they are, does a ‘reasonable security’ problem exist which might permit a deprivation of rights under the statute? (3) If so, to what extent are deprivations of those rights ‘necessary’ to satisfy reasonable security interests.” (In re Arias, supra, 42 Cal.3d at pp. 689-690.)

We concluded that installation of a listening device in the chapel could have a chilling effect on the inmates’ conversations with their spiritual adviser, thus implicating their statutory right to religious freedom. (In re Arias, supra, 42 Cal.3d at pp. 690-696.) We pointed out that CYA had made no effort to explore installation of less intrusive electronic security devices to maintain security in the chapel. (Id. at pp. 697-700.)

Under the just-described Arias test, there may be some merit to plaintiffs’ contention that defendants’ rule requiring Reverend Harrell to leave upon

Recently, two Court of Appeal decisions involved issues arising under the Legislature’s 1994 amendment of section 2600. In neither case, however, did the Court of Appeal consider the continued viability of the Arias test in light of this amendment. In In re Roark (1996) 48 Cal.App.4th 1946 [ 56 Cal.Rptr.2d 582 ], the Court of Appeal simply assumed the applicability of the Arias test in addressing an inmate’s contention that the prison violated section 2600 when it required his attorney to remove his artificial leg before visiting the inmate. (Roark, at p. 1948.) And in Small v. Superior Court (2000) 79 Cal.App.4th 1000 [ 94 Cal.Rptr.2d 550 ], where the issue was whether certain restrictions imposed by a prison warden on visits between prison inmates and their attorneys violated section 2600, the Court of Appeal did not even mention our decision in In re Arias, supra, 42 Cal.3d 667 , simply assuming that a section 2600 claim is governed by the high court’s test in Turner, supra, 482 U.S. 78 , 89-91 [ 107 S.Ct. 2254 , 2261-2262], which was decided after Arias. (Small v. Superior Court, supra, 79 Cal.App.4th at p. 1011.)

Because the Legislature quoted directly from Turner, supra, 482 U.S. 78 , when it amended section 2600 to state that prison regulations are valid if they are “reasonably related to legitimate penological interests,” we conclude that the Legislature intended to abrogate this court’s three-part test in In re Arias, supra, 42 Cal.3d 667 , in favor of the test the United States Supreme Court established in Turner. As we explain below, there are significant differences between the two tests.

In holding that a prison regulation is valid if it “is reasonably related to legitimate penological interests” (Turner, supra, 482 U.S. at p. 89 [107 S.Ct. at p. 2261]), the United States Supreme Court mentioned four factors to be considered. First, “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” (Id. at p. 89 [107 S.Ct. at p. 2261].) Second, the court should consider “whether there are alternative means of exercising the right that remain open to prison inmates,” in which case the court “should be particularly conscious of the ‘measure of judicial deference owed to corrections officials ... in gauging the validity of the regulation.’ ” (Id. at p. 90 [107 S.Ct. at p. 2262].) Third is the “impact [that] accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” (Ibid.) When such accommodation “will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” (Ibid.) Fourth, the “absence of ready alternatives is evidence of the reasonableness of a prison regulation,” while “the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable . . . .” {Ibid.) Applying this test, the high court concluded that the Missouri prison regulation limiting inmate-to-inmate correspondence was reasonably related to legitimate security interests, but that the marriage restriction was constitutionally invalid.

A week after that decision, the high court applied the Turner test in O’Lone v. Estate of Shabazz (1987) 482 U.S. 342 [ 107 S.Ct. 2400 , 96 L.Ed.2d 282 ] (O’Lone). In that case, as here, the plaintiffs challenged a prison’s rules as violating the right to free exercise of religion. Specifically, Muslim inmates of a New Jersey prison contended that the prison’s regulations, which required them to work outside the facility on weekdays, violated their First Amendment rights by preventing them from attending Jumu’ah, a service that is commanded by the Koran and must be held on Friday afternoons.

The high court upheld the prison regulation. Applying the four-factor test of Turner, supra, 482 U.S. 78 , it concluded: (1) There was a logical connection between the prison regulation and the government’s legitimate

To determine whether defendants here violated section 2600 by not permitting Reverend Harrell to stay with Thompson until he was taken to the execution chamber, we apply the high court’s test in Turner, supra, 482 U.S. 78 , as clarified a week later in its decision in O’Lone, supra, 482 U.S. 342 .

As explained earlier, the first factor under the Turner test is whether there is a valid connection between the prison regulation and the government interest put forward to justify it. Defendants argue that permitting a prisoner’s personally chosen spiritual adviser to stay with the prisoner during the last 20 minutes before the prisoner’s departure for the execution chamber poses a security risk. During that time, as described in the prison’s internal regulation (see p. 127, ante), members of the execution team change the clothing of the condemned inmate and attach a heart monitor to his chest. If the prisoner’s spiritual adviser of choice is allowed to stay with the prisoner during that time, the adviser may learn the identities of the members of the execution team. In his declaration, Warden Calderon, one of the defendants, explained that “the identity of the correctional staff who comprise the execution team must be kept as confidential as possible for the security of the institution, and for the safety of the officers and their families.”

Defendants’ fear that members of the execution team and their families could be subject to retaliation if their identities became known to a wider circle of people, including the prison’s inmates, certainly is a “legitimate governmental interest.” (Turner, supra, 482 U.S. at p. 89 [107 S.Ct. at p. 2261].) Here, there is a “ ‘valid, rational connection’ ” (ibid.) between the challenged rule and the government’s asserted interest. This connection is not “so remote” as to render the rule “arbitrary or irrational.” (Id. at pp. 89-90 [107 S.Ct. at p. 2261].)

The second Turner factor is whether the prisoner has alternative means of exercising the constitutional right in question. Here, defendants do not deny prisoners sentenced to death the opportunity to practice their religion. Condemned inmates can meet with their personally chosen spiritual adviser of choice for as long as they want before the execution. The only restriction is that the adviser leave 45 minutes before the scheduled execution. As in O’Lone, supra, 482 U.S. 342 , the prisoner here has an alternative means of exercising religious rights.

The third Turner factor is the effect that accommodation of the prisoner’s asserted constitutional right will have on guards, other inmates, and the allocation of prison resources. As we explained earlier in discussing the first Turner factor, defendant Warden Calderon stated in his declaration that permitting a condemned prisoner’s spiritual adviser of choice to remain with the prisoner during the last 20 minutes preceding the prisoner’s removal to the execution chamber would enable the adviser to learn the identities of the members of the execution team, posing a security risk to the team members and their families. In this matter of prison administration, we defer to Warden Calderon’s evaluation of the security risks. As the high court has stated, “even where claims are made under the First Amendment” we may not “ ‘substitute our judgment on . . . difficult and sensitive matters of institutional administration’ [citation] for the determinations of those charged with the formidable task of running a prison.” (O’Lone, supra, 482 U.S. at p. 353 [107 S.Ct. at p. 2407].)

The fourth Turner factor is the availability of ready alternatives to the prison regulation. Plaintiffs here have not suggested any alternatives that would eliminate the security concerns discussed above.

George, C. J., Mosk, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.

Respondents’ petition for a rehearing was denied May 16, 2001.