IN RE: Stephen D. REYNOLDS (1977)

Court of Appeal, First District, Division 3, California.

IN RE: Stephen D. REYNOLDS, on Habeas Corpus.

Cr. 16765.

Decided: August 08, 1977

Michael R. Snedeker, Paul W. Comiskey, Prisoners Union, San Francisco, for petitioner. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Deputy Atty. Gen., Stanford Svetcov, Deputy Atty. Gen., San Francisco, for respondents.

Petitioner is an inmate of Soledad Prison. By this habeas corpus proceeding, he seeks the right to wear, in the prison, a button displaying a likeness of a barred door or window, and the words “Prisoners Union.” The petition for habeas corpus was filed in the Supreme Court. That court issued its order to show cause, return to be made to this court.

In July 1976, Ricardo Vasquez, then confined in Soledad Prison, applied to proper authorities for permission to acquire a Prisoners Union button. His request was denied. Rules of the Department of Corrections, established under authority of the Administrative Code (tit. 15, § 3003), provide an extensive inmate grievance procedure, including rights of administrative appeal. Vasquez appealed the denial. At some unstated time, after initiation of the third and final stage in the administrative appeal, he was released on parole. On November 10, 1976, petitioner Reynolds filed, at Soledad, a similar request and wrote “I am aware that an administrative appeal by Ricardo Vasquez * is still pending. This appeal expresses my sentiments exactly, so I wish to add my name to any litigation regarding the issues involved.” By letter of November 24 to Vasquez, the director of corrections denied his appeal. Petitioner Reynolds then sought habeas corpus in the Superior Court of Monterey County. His petition was denied, and this petition followed.

Respondents, the director of corrections and the superintendent of the Soledad facility, argue that the issue is not properly before the court because petitioner has not exhausted his administrative remedies. It is obvious that Reynolds has not himself resorted to any of the grievance and appeal procedures available to him. Exhaustion of administrative remedies is generally required as a condition to resort to habeas corpus (In re Muszalski, 52 Cal.App.3d 500, 125 Cal.Rptr. 286; In re Thompson, 52 Cal.App.3d 780, 125 Cal.Rptr. 261). We find no authority for adoption of one prisoner's grievance procedure by another, nor for a class action in a grievance proceeding. Both seem negated by clear implication from the prison grievance regulations. But in civil cases, exhaustion of administrative remedies is not required when resort to such remedy clearly would be futile (see Ogo Associates v. City of Torrance, 37 Cal.App.3d 830, 112 Cal.Rptr. 761). Denial of Vasquez' grievance appeal was not based upon any factor related to the individual applicant, but solely upon the absence of official authorization or recognition of the Prisoners Union, arguably bringing the case within the rule of Ogo. Moreover, the union claims some 3,000 inmate members in California. It maintains headquarters and a legal staff. The issue seems sure to arise again, and in fact a trial court habeas proceeding challenging the denial of authorization to the union has just been determined adversely to the union (Price, et al. v. Enomoto, et al., Monterey County Superior Court No. HC 446). We therefore consider the merits.

Prison regulations permit the wearing of small lapel-type pins by members of authorized organizations. No other pins or badges (save for small religious symbols) are allowed to be worn.

The Prisoners Union is an organization of prison inmates and of those who were imprisoned but have been released. Its stated objectives are: “(1) To collectively bargain with the correctional department, support convict-initiated prison change, and seek redress for convict grievances. (2) To end economic exploitation by gaining the right to a prevailing wage for all work done in prison. (3) To establish a uniform sentencing structure and the abolition of indeterminate sentencing. (4) To restore civil and human rights to convicts and ex-convicts.”

In denying the request that it be authorized to form a chapter, the director of corrections pointed to a “great potential for coercion of inmates by other inmates, creating a substantial chance of violent actions. The proposal is likely to enhance the likelihood for confrontations between groups of inmates and institutional staff, with consequent disruptions of the orderly operation of the institution and the opportunity for uninvolved inmates to live peaceably and comfortably in the institution.”

Prison regulations do not prohibit membership in the union, possession by inmates of membership cards, or receipt of copies of the union magazine, The Outlaw, to the extent that the magazine does not violate rules limiting magazines generally. The effect of denial of authorization is to prohibit solicitation of union membership (and meetings of the union) within the prison. To the extent that wearing of the union button is “speech” in the constitutional sense, it clearly is an advertisement for and solicitation of membership. Thus, the one issue in this case is the propriety of denying “authorization” to the union.

A case on strikingly similar facts (Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 was determined by the United States Supreme Court June 23, 1977, after issuance of the order to show cause herein. The high court concluded that comparable regulations of the North Carolina correctional system “offended neither the First nor the Fourteenth Amendments.” We cannot distinguish the like provisions of the California Constitution, and the statute (Pen.Code, § 2600) confers no broader right.

The petition for writ of habeas corpus is denied.

DRAPER, Presiding Justice.

SCOTT and GOOD (Retired Judge of the Superior Court assigned by the Chairman of the Judicial Council), JJ., concur.