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Michael E. Scherffius v. Mathew Cate

February 10, 2011

MICHAEL E. SCHERFFIUS, PLAINTIFF AND APPELLANT,
v.
MATHEW CATE, AS SECRETARY, ETC., DEFENDANT AND RESPONDENT.



(Super. Ct. No. 34-2008-00007050-CU-WM-GDS)

The opinion of the court was delivered by: Blease, J.

Scherffius v. Cate

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Michael E. Scherffius filed a petition seeking a writ of mandate and declaratory relief to invalidate a prison regulation precluding prisoners convicted of certain sex crimes against children -- such as himself -- from having contact visits with minors, including with his 14-year-old son. (Cal. Code Regs., tit. 15, § 3173.1 (§ 3173.1). The trial court denied the petition, and petitioner timely appealed.

On appeal, petitioner contends the regulation was not properly adopted and it improperly burdens his familial rights. We conclude petitioner has failed to show the regulation was not properly adopted, and has failed to show that it improperly burdens his rights. Accordingly, we shall affirm.

BACKGROUND

"Non-contact visiting refers to a system in which the inmate is physically separated from his or her visitors by a barrier. . . . Spoken communication between the inmate and the visitor takes place either through holes in the viewing panel or through a telephone-type system which transmits the voices across the barrier. Contact visiting, by contrast, is a visiting method in which the inmates are not totally separated from each other by a barrier but, instead, can visit directly." (3 Mushlin, Rights of Prisoners (4th ed. 2009) Visiting, § 13:15.) In California, non-contact visits "usually occur in a booth where the visitor and prisoner can see each other through plexiglass and speak over a phone." (Mackay, Cal. State Prisoners Handbook (4th ed. 2008) Rights of Prisoners, § 2.5(C), p. 56.)

In relevant part, the challenged regulation provides:

"(a) For inmates convicted of Penal Code (PC) Section(s) 261, 264.1, 266c, 269, 285, 286, 288, 288a, 288.5, or 289 when the victim is a minor, visitation with the minor victim shall be prohibited, except as authorized by an order of the juvenile court pursuant to Welfare and Institutions Code Section 362.6. Visitation pursuant to such an order shall be limited to non-contact status.

"(b) For inmates convicted of PC Section(s) 261, 264.1, 266c, 285, 286, 288, 288a, 288.5, or 289 when the victim is a minor, visitation with any minor who is not the victim of the crime shall be limited to non-contact status except as authorized by the Institution Classification Committee." (§ 3173.1.)*fn1

The petition was filed against James Tilton, the former Secretary for the Department of Corrections and Rehabilitation (Department) seeking a writ of mandate and declaratory relief, contending the regulation was not properly adopted and unduly burdens petitioner's rights.*fn2 Although the trial court considered the Department's ...


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