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Michael E. Scherffius v. Mathew Cate


February 10, 2011


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

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

Scherffius v. Cate



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


"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 demurrer, the trial court denied the petition on the merits. Petitioner timely appealed.


Petitioner's brief consists of a rambling attack on the regulation, with scant adherence to appellate rules, which call for clear argument headings, citations to the record to support factual assertions, and coherent analysis of legal principles with citations to authority. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 [failure to adhere to these rules forfeits the contention of error].)

We glean two legal theories from petitioner's brief, namely, that the regulation is procedurally invalid under the Administrative Procedures Act (Gov. Code, § 11340 et seq. (APA)), and that it is substantively invalid under due process principles that protect a prisoner's right to maintain family relationships. We reject those claims on the merits. We deem other claims buried in petitioner's brief to be forfeited. (In re S.C., supra, 138 Cal.App.4th at p. 408.)

I. Procedural Validity of the Regulation

Without objection, the trial court took judicial notice of records of the Office of Administrative Law (OAL), showing the regulation was posted for public comments, and that public comments were received, considered and addressed.

The "Final Statement of Reasons" in part states that the Department recognized "the value of visitation for establishing and maintaining meaningful family and community relationships" and concluded the proposed regulation would "ensure the safety of all persons, including visiting minors, and will ensure the legitimate penological interests of maintaining the safety and security of the institutions."

Based on the OAL records, the trial court found the regulation was properly adopted under the APA.

Petitioner contends that because most public comments "vehemently protested" the regulation, the Department acted arbitrarily in adopting it, and therefore abused its discretion. (See Wallace Berrie & Co. v. State Bd. of Equalization (1985) 40 Cal.3d 60, 65.) We disagree.

An agency is required to consider public comments on proposed regulations, according to procedures set forth in the APA. (See Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 568-569.) The OAL records show the Department considered and responded in writing to those comments. Petitioner provides no authority supporting the proposition that an agency abuses its discretion or otherwise violates the APA by rejecting the views of the majority of persons choosing to lodge comments on a proposed regulation.

Where a point is asserted without coherent argument or legal authority, "it is deemed to be without foundation and requires no discussion by the reviewing court." (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 (Atchley).) Accordingly, petitioner has failed to carry his burden to demonstrate the regulation was not properly adopted.

Petitioner contends he was entitled to declaratory relief. Because the petition alleged a live controversy between the parties about the validity of the regulation, a declaration resolving that controversy was appropriate. (Gov. Code, § 11350, subd. (a); see Pulaski v. Occupational Safety & Health Stds. Bd. (1999) 75 Cal.App.4th 1315, 1327-1328.) This accords with the general rule that a trial court should not dismiss a civil complaint seeking declaratory relief, but should issue a decree resolving the dispute, even if it is against the plaintiff. (Savient Pharmaceuticals, Inc. v. Department of Health Services (2007) 146 Cal.App.4th 1457, 1464.) But because this opinion explicates the rights of the parties, no remand is required. (See id. at p. 1464.)*fn3

II. Substantive Validity of the Regulation

Petitioner contends that the regulation unduly burdens his right to maintain a familial connection with his son. We agree prisoners have the right to maintain familial relationships, and the general right "of reasonable visitation with their children." (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 640-641; see 3 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Punishment, § 62, p. 105.) However, we disagree that the regulation in this case unduly burdens that right.

The method of assessing the validity of prison regulations was set forth by the United States Supreme Court in Turner v. Safley (1987) 482 U.S. 78 [96 L.Ed.2d 64] (Turner), and hinges on the existence, vel non, of "legitimate penological interests." (Id. at pp. 89-91 [96 L.Ed.2d at pp. 79-80].)

The California Legislature later amended Penal Code section 2600 to provide, in relevant part: "A person sentenced to imprisonment in a state prison may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests." (Stats. 1994, ch. 555, § 1, p. 2821, italics added.)

The California Supreme Court held this amendment requires application of the Turner test in evaluating prison regulations. (People v. Loyd (2002) 27 Cal.4th 997, 1008-1009; Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 129-132; see Snow v. Woodford (2005) 128 Cal.App.4th 383, 390-393 (Snow).)

Courts "must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them." (Overton v. Bazzetta (2003) 539 U.S. 126, 132 [156 L.Ed.2d 162, 170] (Overton).) Petitioner has the burden to disprove the regulation's validity, by applying the four Turner factors: "whether the regulation has a '"valid, rational connection"' to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are 'ready alternatives' to the regulation." (Ibid.; see In re Furnace (2010) 185 Cal.App.4th 649, 664-666.)

Petitioner does not separately analyze the four Turner factors, but argues generally that the statute serves no legitimate penological or societal interest and burdens his right to maintain a connection with his son. We first address his general points, then apply the Turner test.

Although prisoners have the general right to maintain family relationships, it is "well-settled that prisoners have no constitutional right while incarcerated to contact visits[.]" (Gerber v. Hickman (9th Cir. 2002) 291 F.3d 617, 621 & fn. 1; see Barnett v. Centoni (9th Cir. 1994) 31 F.3d 813, 817.) The United States Supreme Court has upheld a prison regulation limiting high-security prisoners to non-contact visitation, including with the inmate's family members. (Overton, supra, 539 U.S. at pp. 130-137 [156 L.Ed.2d at pp. 169-173].)*fn4

More specifically, a number of courts have held that persons convicted of sex offenses against children may be prohibited from contact visitation with their own children, concluding such a regulation has a legitimate penological interest, does not preclude visitation and other forms of communication that will maintain family ties, and is not punitive. (Wirsching v. Colorado (10th Cir. 2004) 360 F.3d 1191, 1198-1201 (Wirsching); Odenwalt v. Gillis (M.D.Pa. 2004) 327 F.Supp.2d 502, 506-509 ["there are clearly legitimate penological interests in disallowing sex offenders from having contact with minors, whether it be their own children or otherwise"]; Garber v. Department of Corrections (Pa.Commw. 2004) 851 A.2d 222, 224-228 [regulations barring contact visits with children were "rationally related to legitimate, and obvious, penological interests under Overton and Turner"]; see Cassady v. Moore (Fla.Ct.App. 1999) 737 So.2d 1174, 1176-1177 [upholding regulation barring all minor visitation, absent permission]; Doe v. Donahue (Ind.Ct.App. 2005) 829 N.E.2d 99, 108-110, transfer denied 838 N.E.2d 403 [similar holding] (Doe).)*fn5

The instant regulation allows petitioner to visit with his son, and does not prohibit communication with his son by letter or telephone, it simply precludes him from touching his son during his son's minority. We agree with the courts cited above that this is a permissible restriction on the rights of an inmate convicted of sex offenses against children.

We now explain in more detail why the regulation satisfies the four-factor Turner test.

The first Turner factor is "whether there is a rational connection between a prison regulation and a governmental interest justifying the regulation[.]" (Snow, supra, 128 Cal.App.4th at p. 390.) The Department has determined that minor prison visitors must be protected from sexual molestation, and the regulation achieves this goal by preventing contact visitation between minors and those inmates who have been convicted of sexual offenses against minors. This regulation logically advances a legitimate governmental purpose. (See Wirsching, supra, 360 F.3d at pp. 1199-1200.)

The second Turner factor is "whether there are alternative means of exercising the right" burdened by the regulation. (Snow, supra, 128 Cal.App.4th at p. 392.) Although touch is a valuable, intimate, method of communication, the alternatives of non-contact visitation, telephone calls and letters are adequate to allow petitioner to maintain his relationship with his son, as the trial court found. (Wirsching, supra, 360 F.3d at pp. 1200-1201; see also Doe, supra, 829 N.E.2d at p. 112 (dis. opn. of Baker, J.) [suggesting non-contact visitation was a reasonable alternative to Indiana's total ban on minor visitation with sex offenders].) Petitioner's contention that the regulation equates to an order terminating his parental rights lacks merit.

The third Turner factor is "whether the accommodation of the asserted constitutional right will have a significant negative impact on prison guards, other inmates and the allocation of prison resources generally." (Snow, supra, 128 Cal.App.4th at p. 393.) This somewhat overlaps the fourth Turner factor, "whether the regulation is an exaggerated response to Department's concerns. . . . This is not a "least restrictive alternative" test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint. [Citation.] But if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.'" (Snow, supra, 128 Cal.App.4th at p. 393, partly quoting Turner, supra, 482 U.S. at pp. 90-91 [96 L.Ed.2d at p. 80].)

In a claim that touches on both the third and fourth Turner factors, petitioner states that the chance a child prison visitor "could ever be assaulted is almost nil[.]" He claims prison visiting rooms are carefully monitored, and "Any child at a prison visiting room has dozens of inmate guardians who would intercede in a second to protect a child, plus staff, and other parents." This fact is not supported by references to the record, and in any event does not show the regulation was an exaggerated response to the Department's concerns. Petitioner's description of prison visiting rooms portrays an environment in which the absence of the regulation would require additional staff to monitor the visiting room, both to protect minor children from inmates and to protect inmates from each other in the case of an incident. Although petitioner claims it is "almost" impossible for molestation to occur in a visiting room, we defer to the Department's implicit conclusion that "almost" is not good enough, and the regulation adequately and efficiently ensures the safety of minor visitors. Thus, petitioner has not shown that the third and fourth Turner factors weight against the regulation.

Accordingly, we reject petitioner's contention that the regulation is substantively invalid.


The judgment denying the petition is affirmed.

We concur: RAYE, P. J. MAURO, J.

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