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In Re Larnell Crosby On Habeas Corpus.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen)


November 9, 2011

IN RE LARNELL CROSBY ON HABEAS CORPUS.

(Super. Ct. No. CHW2619)

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

In re Crosby

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is a petition for a writ of habeas corpus by prison inmate Larnell Crosby. Petitioner filed an administrative appeal when prison officials refused to designate as confidential mail that was connected with a claim he was pursuing for veterans' benefits. Petitioner subsequently pursued relief by petition for a writ of habeas corpus. He claims he is entitled to confidentially correspond with the Department of Veterans Affairs (the Department), including its Office of General Counsel, and with a veterans service organization (VSO) of his choice. We previously found that he established a prima facie case, and we issued an order to show cause.

We now conclude that petitioner is entitled to have mail from the Department designated as confidential. As we shall explain, a state statute and regulation allow prisoners to correspond via confidential mail with elected or appointed officials and their employees. Those provisions apply here. Both the Secretary of Veterans Affairs, who heads the Department, and the Department's General Counsel are appointed officials. (38 U.S.C. §§ 303, 311.)

We further conclude, however, that petitioner is not entitled to have mail received from a VSO designated as confidential. As we shall explain, VSOs are not covered by statutory and regulatory provisions allowing confidential correspondence between inmates and groups of attorneys.

BACKGROUND

The procedure for handling incoming confidential mail to a prison inmate is described in the California Code of Regulations, title 15, section 3143. Mail is inspected to ensure it includes the name, title, return address, and office of a person listed in the regulations with whom an inmate is entitled to confidentially correspond. A notice or request that the mail be considered confidential is not required to appear on the envelope. If the mail is from an attorney, the attorney's return address must match State Bar of California (State Bar) records. Provided that mail meets these requirements, it is then opened in the presence of the inmate to whom it is addressed. It is inspected to ensure the absence of prohibited material, but staff is prohibited from reading the confidential correspondence. The inmate must sign for the mail.

Outgoing confidential mail is governed by somewhat similar provisions, which are described in the California Code of Regulations, title 15, section 3142. Mail must be addressed to a person or office of a person with whom an inmate is entitled to confidentially correspond and must include the inmate's full return address. If the mail is for an attorney, the attorney's address must match State Bar records. The word "confidential" must appear on the face of the envelope. The envelope is subsequently sealed, following an inspection for prohibited material that is performed in the inmate's presence. The inspection is performed by designated staff in a manner that precludes staff from reading the confidential correspondence.

According to the supporting documentation, petitioner has sent and received mail in connection with a claim for veterans' benefits that he pursued up to the United States Court of Appeals for Veterans Claims. The issues raised here are the right to confidentially correspond with (1) the Department and (2) VSOs that assist and represent claimants, such as petitioner, in pursuing their claims for veterans' benefits.

Petitioner filed an administrative appeal with respect to his claim that prison officials had failed to designate the mail as confidential. He pursued his administrative appeal to the director's level of review. He then filed a petition for a writ of habeas corpus in superior court, which was denied by the court without the issuance of an order to show cause. He subsequently filed his petition in this court, and we issued an order to show cause returnable before the superior court. (In re Crosby (July 6, 2009, C061865) [order granting order to show cause].) The superior court entered an order on August 19, 2010, denying the petition and discharging the order to show cause.

Petitioner then filed the current petition in this court. On April 21, 2011, we directed issuance of an order to show cause returnable before this court. Respondent Mike McDonald, Warden of High Desert State Prison, represented by the Attorney General, filed a return on June 7, 2011. Petitioner's counsel filed a traverse on July 7, 2011.

DISCUSSION

I. Department

Petitioner claims he is entitled to correspond confidentially with the Department, including its Office of General Counsel. In support of his claim, petitioner cites Penal Code section 2601, subdivision (b), which provides that there is a statutory right to confidentially correspond "with any member of the State Bar or holder of public office." (Italics added.) Further, he cites prison regulations that provide, in pertinent part: "Persons and employees of persons with whom inmates may correspond confidentially and from whom inmates may receive confidential correspondence include: [¶] (1) All state and federal elected officials [and] [¶] (2) All state and federal officials appointed by the governor or the President of the United States." (Cal. Code Regs., tit. 15, § 3141, subd. (c), italics added.) The Secretary of Veterans Affairs is appointed by the President and heads the Department, and the General Counsel is likewise appointed by the President. (38 U.S.C. §§ 303, 311.) Thus, under the express language of the regulation, petitioner is entitled to confidentially correspond with employees of the Department.

The Attorney General suggests "[t]he regulations allow for the correspondence to encompass the immediate staff for appointed officials, but not . . . every individual that is an employee" and "[t]o interpret otherwise would improperly expand the scope of Crosby's statutory right."*fn1 The primary problem with the Attorney General's argument is that it adds language that is not in the regulation, that being the words "immediate staff."

Moreover, we find nothing unreasonable or inconsistent with the regulation as it is currently written. It is true that "[r]egulations should be construed in light of the enabling statute's intent and the general policies underlying the statutory scheme." (Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1220.) But most elected or appointed officials head an office or administrative organization that carries out the official's duties. Consequently, the goal of confidential communication with an appointed or elected official can reasonably be extended to an employee and need not be restricted to "immediate staff." In fact, the term "immediate staff" would invite substantial doubt as to its scope. Allowing confidential communication with "employees" provides a more direct, brightline rule.

The Attorney General complains, however: "Under [petitioner's] interpretation, the regulation would allow for him to communicate confidentially with an accounting clerk or the custodial staff because they are employed by the Department of Veterans Affairs." The Attorney General also broadly complains that petitioner's argument extends to field and regional offices of the Department. The Attorney General cites case law indicating deference is given to an administrative agency's interpretation of the controlling authority. (See Calderon v. Anderson (1996) 45 Cal.App.4th 607, 613.) The Attorney General suggests that petitioner's (and our) interpretation of the regulation is overbroad and, essentially, absurd.

Whether the regulation applies to communications with janitors or other employees who perform an entirely collateral function unconnected with the actual work of the Department is not before us. There is no assertion that petitioner's communications are with such employees. Given that the controlling language of the regulation is clear and unequivocal as applied to the limited facts presented, there is no need to imagine all the possible circumstances under which the language could be applied to reach a dubious outcome. Accordingly, we find meritorious petitioner's claim of a right to confidentially correspond with the Department.

II. VSOs

Petitioner also claims the right to correspond confidentially with a VSO of his designation. As noted, VSOs assist veterans in pursuing their claims. Federal regulations prescribe an application process for the accreditation of such organizations. The issue is whether organizations recognized under federal regulations also fall within the description of organizations with which inmates may correspond confidentially under state statutes and regulations.

California Code of Regulations, title 15, section 3141, subdivision (c)(9) provides that there is a right to correspond confidentially with: "A legitimate legal service organization that consists of an established group of attorneys involved in the representation of offenders in judicial proceedings including, but not limited to: [¶] (A) The American Civil Liberties Union [(ACLU)]. [¶] (B) The Prison Law Office. [¶] (C) The Young Lawyers Section of the American Bar Association. [¶] (D) The National Association of Criminal Defense Lawyers. [¶] (E) California Appellate Project." Further, there is a statutory right to correspond confidentially with a member of the State Bar, as previously mentioned, as well as a regulation recognizing the right to correspond with an attorney "on active status or otherwise eligible to practice law, listed with a state bar association." (Cal. Code Regs., tit. 15, § 3141, subd. (c)(6).)

The Attorney General emphasizes that proceedings before the Department are administrative, and not designed like courts for adversarial dispute resolution. The Attorney General points to the language of the state regulation and asserts that VSOs do not consist of an "established group of attorneys who represent offenders in judicial proceedings." Petitioner responds that this reading is "overly restrictive, for if attorney status was required to qualify a VSO as a legitimate legal service organization entitled to confidential communication status," then the regulation would be duplicative of the statute. To resolve the dispute, we begin by considering the system for resolving veterans' claims as well as the nature of a VSO.

"The veterans' benefits system remains a non-adversarial system when cases are pending before the Veterans' Administration." (Forshey v. Principi (Fed.Cir. 2002) 284 F.3d 1335, 1355 (en banc) (Forshey), superseded by statute on other grounds, as stated in Morgan v. Principi (Fed.Cir. 2003) 327 F.3d 1357, 1358-1359.) On the other hand, subsequent review in the Court of Appeals for Veterans Claims can be considered adversarial and at least quasi-judicial. (See Forshey, at p. 1355.)*fn2

Regulations governing VSOs provide for the recognition of national, state, and regional or local organizations to assist veterans in pursuing their claims. (38 C.F.R. § 14.628 (2011).) A recognized service organization must file an "Application for Accreditation as Service Organization Representative" for each person it wants to be accredited as a representative of the organization. (38 C.F.R. § 14.629(a) (2011).) The regulations specify that the organization must certify various criteria in recommending a person as a representative, including a demonstrated ability to represent claimants. (Ibid.) Notably, there are provisions for both "attorneys" and "agents" to represent claimants; a person who is not an attorney may assist a claimant provided he or she meets specified criteria. (Id. at subd. (b); U.S. Vet.App., Rules Prac. & Proc., rule 46.)

We conclude the composition and purpose of a VSO does not comport with the right to confidential communication with attorneys or a "legal service organization." (Cal. Code Regs., tit. 15, § 3141, subd. (c)(9).) The examples of legal service organizations given in the regulation (such as the ACLU and California Appellate Project) are organizations connected with representing inmates in traditional legal proceedings involving an inmate's conviction or conditions of confinement. These organizations necessarily include attorneys, and their practice necessitates legal representation by attorneys. Consequently, the regulation is not duplicative of the statute but is a reasonable extension of the statutory mandate that inmates are entitled to correspond confidentially with members of the State Bar.

VSOs do not represent veterans in the type of judicial proceedings typified by the nonexclusive list in the regulations. Significantly, VSOs may, but need not, include attorneys within their organizations since non-attorneys may represent veterans in pursuing their claims. This is true notwithstanding the fact that such representation may extend to an appeal before the Court of Appeals for Veterans Claims. Accordingly, we conclude that, at least absent compliance with the standards for corresponding with an attorney, there is no broader right to correspond confidentially with a VSO.*fn3

III. Remedy

Petitioner seeks injunctive relief, namely an order directing prison officials to treat his mail as confidential, which we grant in part and deny in part according to our analysis of his two claims. Petitioner concedes that punitive or exemplary damages are not available in a state habeas proceeding but notes such damages may be awarded as part of a civil rights claim and points to this court's inherent authority to fashion an effective remedy. Accordingly, petitioner "asserts that this Court may construe [the] petition as also including a civil rights claim for punitive and exemplary damages." We decline petitioner's invitation to award damages.

DISPOSITION

The California Department of Corrections and Rehabilitation is directed to treat correspondence between petitioner and the Department of Veterans Affairs as confidential, as explained herein. The order to show cause, having served its purpose, is discharged.

We concur: NICHOLSON , J. BUTZ , J.


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