Opinion
No. 592 M.D. 2006.
Submitted: April 24, 2009.
Filed: July 20, 2009.
BEFORE: SMITH-RIBNER, Judge; LEAVITT, Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
Earl R. Vance, an inmate at the State Correctional Institution at Somerset, has filed a petition for summary judgment in his action against the Secretary of Corrections, Jeffrey A. Beard (Secretary), for declaratory judgment and injunctive relief seeking to invalidate an amendment to the Department of Corrections Policy DC-ADM 803-1, titled "Inmate Mail and Incoming Publications" (Policy 803-1), that restricts inmate access to pornographic materials or those involving nudity. Vance contends that his right to summary relief is clear in that the Secretary has admitted in his answer that he issued a bulletin amending Policy 803-1, which in effect is an amendment to the regulation at 37 Pa. Code § 93.2(g)(3) and (4), and admitted also that the amendments were not promulgated as a regulation pursuant to the Act known as the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769 as amended, 45 P.S. §§ 1102 — 1602. Further, the policy was amended and reissued on April 28, 2008 again without promulgation.
Vance filed his complaint on November 15, 2006, alleging that the Secretary issued a bulletin amending Policy 803-1 on December 29, 2005. The amendment stated that inmates could not receive or possess pornography as defined. It allegedly prohibited existing subscriptions to pornographic magazines and books, all nude photographs and new subscriptions and orders, with all such materials to be confiscated and destroyed after January 1, 2007. Vance averred that under the regulation at 37 Pa. Code § 93.2, relating to inmate correspondence, pornography issues are not listed as stated in Policy 803-1 and that obscenity law does not ban all nude publications. Also, Section 93.2 prohibits only publications containing obscene material as defined under obscenity law, and The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §§ 51 — 732, does not empower the Secretary to issue a policy inconsistent with law.
In Brittain v. Beard, 932 A.2d 324, 326 n1 (Pa.Cmwlth. 2007), appeal granted, ___ Pa. ___, ___ A.2d ___ (No. 55 MAP 2008, filed July 25, 2008), the bulletin was quoted as stating that material would be considered to be pornographic if:
the material contains nudity which means showing the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less that [sic] a fully opaque covering of any portion thereof below the top of the nipple (exposure through "see through" materials is considered nudity for the purposes of this definition).
In Paragraph 10 of the complaint, Vance alleged that the amended Policy 803-1 was not issued according to procedures under the Commonwealth Documents Law, and therefore it had no binding effect, and in Paragraph 11 he alleged that the amendment was inconsistent with the underlying regulation and violated Vance's First Amendment rights and therefore was unconstitutional. Vance requested declarations to that effect and an injunction.
The Secretary filed a demurrer asserting that Vance failed to state a claim because Policy 803-1 was a bulletin rather than a regulation and a rule of internal prison management, and it was not subject to the Commonwealth Documents Law. He relied upon Small v. Horn, 554 Pa. 600, 722 A.2d 664 (1998), where the Supreme Court affirmed sustaining a demurrer in an inmate challenge to the Department's modification of rules concerning inmate dress. On Vance's appeal from this Court sustaining the demurrer, the Supreme Court in Commonwealth ex rel. Vance v. Beard, 593 Pa. 447, 931 A.2d 646 (2007), noted that Vance essentially conceded Policy 803-1's restriction on obscene materials but determined that this Court failed to address Vance's challenge to the extent that it contested restrictions on non-obscene materials. The Supreme Court vacated this Court's order and remanded the case for consideration of the relevant challenge. In addition, the Supreme Court stated: "[I]n its final disposition of the matter, the Commonwealth Court is directed to specifically address [Vance's] contention that the Department of Corrections' policy amendment conflicts with an existing substantive regulation promulgated under the Commonwealth Documents Law which has the force and effect of law." Id. at 448, 931 A.2d at 646.
On remand the Secretary again demurred, and he reiterated certain arguments while omitting any reference to the regulation at 37 Pa. Code § 93.2. Section 93.2(g), relating to incoming publications, provides in pertinent part:
(3) Publications may not be received by an inmate if they:
. . . .
(iv) Contain obscene material as defined in 18 Pa. C.S. § 5903 (relating to obscene and other sexual materials and performances).
. . . .
(4) An inmate under 18 years of age may not receive explicit sexual materials as defined in 18 Pa. C.S. § 5903.
18 Pa. C.S. § 5903(b) defines "obscene" as any material or performance if:
(1) the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
(2) the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and
(3) the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.
In addition, Section 5903(b) defines "sexual conduct" as:
Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, anal or oral sodomy and sexual bestiality; and patently offensive representations or descriptions of masturbation, excretory functions, sadomasochistic abuse and lewd exhibition of the genitals.
18 Pa. C.S. § 5903(c) provides that no person shall knowingly disseminate to minors "explicit sexual materials," which is defined to mean materials that are obscene or:
(1) any picture, photograph, drawing, sculpture, motion picture film, video tape or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors; or
(2) any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (1), or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.
Vance argued that all amendments to regulations must be promulgated according to statutory procedures. Section 201 of the Commonwealth Documents Law, 45 P.S. § 1201 provides: "Except as provided in Section 204 [ 45 P.S. § 1204] an agency shall give . . . public notice of its intention to promulgate, amend or repeal any administrative regulation." The statute specifies detailed requirements for such notice, and in Section 208, 45 P.S. § 1208, it provides: "An administrative regulation or change therein promulgated after the effective date of this act shall not be valid for any purpose until filed by the Legislative Reference Bureau. . . ." Vance noted that "pornography" is not defined in the obscenity law at 18 Pa. C.S. § 5903, and he cited Commonwealth v. Lebo, 795 A.2d 987 (Pa.Super. 2002), holding that it is well established that mere nudity is not obscenity. He asserted that under Section 506 of The Administrative Code of 1929, 71 P.S. § 186, heads of agencies are empowered to prescribe rules and regulations "not inconsistent with law" for governance of their bodies and performance of their business, and the legislature had prescribed the only method for amending a properly promulgated regulation.
This Court noted that it had denied motions for summary judgment by both sides in the separate case also challenging the 2005 Policy 803-1 amendment, Brittain v. Beard, 932 A.2d 324 (Pa.Cmwlth. 2007), appeal granted, ___ Pa. ___, ___ A.2d ___ (No. 55 MAP 2008, filed July 25, 2008). It overruled the demurrer and directed the Secretary to file an Answer. To comply, the Secretary filed an Answer with New Matter, including allegations that Vance has no constitutional right as an inmate to possess pornographic materials and that Policy 803-1 relates to a legitimate state interest because it is consistent with the goals of rehabilitating inmates and relates to specific security concerns. Vance filed a Response to New Matter largely denying the allegations and also a petition for summary judgment.
In Brittain the Supreme Court by order of July 25, 2008 granted the Secretary permission to appeal, and it framed the issue as whether this Court erred in denying him summary relief on the basis that he failed to show that Policy 803-1 was reasonably related to legitimate penological interests. This Court by order of July 29, 2008 stayed the matter pending the Supreme Court's disposition.
Motions for summary judgment in this Court are governed by Pa. R.A.P. 1532(b), which provides: " (b) Summary relief. At any time after the filing of a petition for review in an appellate or original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear." However, summary relief under Pa. R.A.P. 1532(b) is similar to relief under the civil rules for summary judgment. Brittain. The moving party has the burden of proving that there exists no genuine issue of material fact as to a necessary element of the cause of action or defense. Id., 932 A.2d at 331 n8.
The petition for summary judgment asserts that the Secretary admitted amending Policy 803-1, acting under color of law; that 37 Pa. Code § 93.2(g)(3) prohibits inmate access to "obscene material" as defined in 18 Pa. C.S. § 5903 and § 93.2(g)(4) prohibits inmates under age eighteen from receiving explicit sexual material; that nudity and pornographic material are established as not being violative of obscenity law; that the Secretary alleged another change on April 28, 2008, which was not promulgated as a regulation pursuant to the Commonwealth Documents Law; and that no issue of material fact exists. Vance points out that here the Secretary has admitted that he amended Policy 803-1 in 2005 and again on April 28, 2008 without compliance with the Commonwealth Documents Law. Therefore, no issue of material fact exists in regard to this cause of action. Vance does not seek summary judgment on the question of whether the modified Policy 803-1 violates his constitutional rights.
The Secretary asserts that Vance has failed to advance any facts upon which the Court could make the findings that he requests. He characterizes as absurd Vance's apparent belief that he has a right to possess certain materials that would otherwise be legal for him to possess if he were not in jail. Next the Secretary characterizes as an "area of material facts" the parties' disagreement over whether the Commonwealth Documents Law applies. Finally, he contends that there is disagreement over whether Policy 803-1 violates Vance's First Amendment rights, stating that he must establish the existence of a liberty interest, citing Sandin v. Conner, 515 U.S. 472 (1995), and the extension of the constitutional protection past prison boundaries, citing Hudson v. Palmer, 468 U.S. 517 (1984). He asserts that a prison regulation is constitutionally supported if it is reasonably related to legitimate penological interests. Payne v. Department of Corrections, 582 Pa. 375, 871 A.2d 795 (2005).
In the Secretary's Answer he refers in a footnote to a reissuance of "DC-ADM 803" on April 28, 2008. In his brief he again in a footnote refers to the "new" DC-ADM 803, which does not attempt to define either obscenity or pornography but specifies what type of materials are not permitted, and for the first time he asserts without accompanying argument that the new policy renders Vance's claims moot. However, a party's failure to develop an issue in its brief results in waiver. Feldman v. Lafayette Green Condominium Ass'n, 806 A.2d 497 (Pa.Cmwlth. 2002).
The Court disagrees with the Secretary's characterization of whether the Commonwealth Documents Law applies as an "area of material facts." The question plainly is one of law. The Secretary's reliance upon Small is misplaced because that case involved bulletins amending policies relating to prisoner dress, restricting apparel to garments more like prison uniforms than civilian attire, and the Court observed that official regulations governing correctional institutions are silent on inmate clothing. In the present case, the underlying policy concerning what publications inmates may receive has been adopted as a regulation. In this Court's decision on an inmate's challenge to an earlier version of Policy 803-1 the Court dismissed as moot the claim that the policy must be promulgated as a regulation because the Department had promulgated it as a regulation in 37 Pa. Code § 93.2(g). Payne v. Commonwealth Department of Corrections, 813 A.2d 918 (Pa.Cmwlth. 2002), aff'd in part and rev'd in part, 582 Pa. 375, 871 A.2d 795 (2005). The Supreme Court in that case acknowledged the promulgation of the policies as a regulation in 37 Pa. Code § 93.2.
Thus the question is not whether the policies in Section 93.2 should be promulgated as a regulation but rather whether they may be amended and altered other than in conformity with the Commonwealth Documents Law. Section 201, 45 P.S. § 1201, provides in general that "an agency shall give . . . public notice of its intention to promulgate, amend or repeal any administrative regulation," and Section 202, 45 P.S. § 1202, provides: "Before taking action upon any administrative regulation or change therein the agency shall review and consider any written comments submitted pursuant to section 201. . . ." (Emphases added.) It is clear that agency regulations must be promulgated according to stringent statutory procedures of the Commonwealth Documents Law in order to have the force and effect of law. R.M. v. Pennsylvania Housing Finance Agency, 740 A.2d 302 (Pa.Cmwlth. 1999). There is no dispute that Policy 803-1 changes were not so promulgated. Accordingly, Vance's summary judgment petition is granted, and the unpromulgated changes to the regulation are declared to be of no effect.
ORDER
AND NOW, this 20th day of July, 2009, the Court grants the petition for summary judgment of Earl R. Vance, Jr., and the Court declares that provisions of the Department of Corrections Policy No. DC-ADM 803-1, relating to inmate mail and incoming publications, that are different from the published and properly promulgated regulation at 37 Pa. Code § 93.2 are of no effect.