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Larson v. Cooper (03/05/2004) sp-5786
Larson v. Cooper (03/05/2004) sp-5786
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
LOREN J. LARSON, JR., )
) Supreme Court No. S-10327
Appellant, )
) Superior Court No. 3AN-00-7050
CI
v. )
) O P I N I O N
ALLEN COOPER, Director, Division )
of Institutions, State of Alaska, Dep't ) [No. 5786 - March 5,
2004]
of Corrections and GARLAND )
ARMSTRONG, former Superintendent )
of the Spring Creek Correctional )
Center, )
)
Appellees. )
________________________________)
LOREN J. LARSON, JR., )
) Supreme Court No. S-10431
Appellant, )
) Superior Court No. 3AN-99-
12826 CI
v. )
)
ALLEN COOPER, Director, Div. )
of Institutions, State of Alaska, )
Dept. of Corrections and LARRY )
DAVIS, Correctional Officer, )
Spring Creek Correctional Center, )
)
Appellees. )
________________________________)
Appeals from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Loren J. Larson, Jr., pro se,
Seward. Timothy W. Terrell, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Does a prison violate a maximum security prisoner's
constitutional rights by limiting his physical contact with his
wife to a brief kiss and embrace at the beginning and end of her
visits? In S-10327, we hold that the free exercise of religion
clause of the federal constitution does not require the prison to
allow hand-holding, kissing, and embracing throughout the visit,
because we conclude that the visitation rules are reasonably
related to legitimate penological objectives. We also hold that
the free exercise clause of the Alaska Constitution does not
require the prison to permit these activities, because we
conclude that they would threaten the state's compelling interest
in maintaining institutional security. In S-10431, we reject the
prisoner's due process claims, because we hold that the temporary
interruption of contact visitation did not interfere with a
protectable liberty interest.
II. FACTS AND PROCEEDINGS
A. Events Surrounding the Visitation and Discipline
Loren J. Larson, Jr. is a maximum security prisoner at
Spring Creek Correctional Center in Seward, an Alaska Department
of Corrections (DOC) facility. In 1999 the correctional center
revised the rules governing contact visitations to prohibit all
physical contact between prisoners and visitors other than "a
short embrace upon initial contact and again upon departure."
Prior to this rule revision, handholding was permitted during
visitation.
According to a civil complaint later filed by Larson,
he and his wife joined hands in prayer during a contact visit on
September 20, 1999. Correctional Officer Larry Davis was
monitoring Larson's visit. Officer Davis determined that
Larson's conduct violated Spring Creek's visitation rules
prohibiting hand holding, and he ordered Larson to release his
wife's hand. Larson refused, and Davis terminated the visit.
Davis filed a disciplinary incident report describing Larson's
refusal to obey a direct order. As a result of this incident,
Larson's contact visitation privileges were suspended, and he was
restricted to secure visitation.
On October 4, 1999 the prison disciplinary committee
found Larson not guilty of disobeying a direct order.
Nevertheless, prison officials continued to restrict Larson to
secure visitation until December 1999.
B. Proceedings in S-10431
Larson filed several grievances and appeals challenging
the disruption of his visit with his wife and the temporary
suspension of contact visitation; all were denied by the Alaska
Department of Corrections. Larson then filed a superior court
administrative appeal in December 1999 in which he contended that
"[t]he actions of [DOC] officials are violative of their own
policy and procedures governing disciplinary [matters], use of
individualized determination, [and] visitation." The superior
court converted Larson's appeal against Officer Davis and Allen
Cooper, the Director of Institutions for the Department of
Corrections, into an original civil action in August 2000.
Larson's complaint against Cooper and Davis alleges
that Officer Davis violated Larson's free exercise of religion
and due process rights under the federal and state constitutions
when Davis ordered Larson to release his wife's hand during their
visit. It also alleges that Cooper violated those rights when he
refused to reinstate Larson's contact visitation privileges. It
also claims that DOC violated its own procedures for altering
rules. The complaint sought a declaration that Davis and Cooper
violated his rights by terminating his September 20, 1999 contact
visit. It also sought an injunction ordering DOC to apologize to
Larson's wife and to begin annual testing of corrections officers
on their knowledge of standard operating procedures for
visitation, and requested compensatory and punitive damages.
Both sides in Larson's suit against Cooper and Davis
moved for summary judgment. Superior Court Judge Peter A.
Michalski granted summary judgment to the defendants and
dismissed Larson's claims. Larson's appeal from this ruling is
before us in Supreme Court File No. S-10431.
C. Proceedings in S-10327
In January 2000 Larson asked Spring Creek
Superintendent Garland Armstrong for permission to conduct a
"religious visit" with his wife; as described by Larson, the
visit would have included extensive contact prohibited by Spring
Creek's visitation rules:
I request approval to receive a
religious visit from my wife on 2-19-00 6:30
to 9:00 pm. This visit is in compliance to
our Christian Faith in maintaining the
institution of marriage.
Activities will include reading from the
New International Readers Version Bible,
Kneeling in prayer to our Lord and Savior
Jesus Christ, Embracing for long periods of
time and when needed, holding of hands and
kissing. All of these activities are
fundamental in our Christian Faith to
maintain our marriage. The attorney visiting
room will be needed for this visit. If
needed, my wife will agree to a strip search
in accordance to Policy and Procedure
(810.02) to alleviate any security concerns.
Larson's request was denied, as were his subsequent grievance and
appeal to Allen Cooper.
Larson filed a superior court complaint in April 2000
alleging that Superintendent Armstrong and Director Cooper
violated his religious free exercise rights guaranteed by the
United States and Alaska Constitutions as well as the Religious
Freedom Restoration Act of 1993 (RFRA).1 His complaint also
alleges that the defendants violated his right, guaranteed by the
Alaska Constitution, to rehabilitation. Larson requested
declaratory and injunctive relief. Both sides moved for summary
judgment. Judge Michalski granted the defendants' motion, and
held, among other things, that Spring Creek's visitation rules
limiting physical contact were narrowly tailored to achieve the
state's compelling interest in reducing the influx of contraband.
Larson's appeal from this ruling is before us in Supreme Court
File No. S-10327.2
D. Consolidation
Larson also has a third appeal, Supreme Court File No.
S-10708, pending before us. Cooper and Spring Creek Assistant
Superintendent Thomas Reimer are the appellees in that appeal.
Larson there contends that Reimer restricted Larson's visitation
privileges in retaliation for the finding of the prison
disciplinary committee that Larson was not guilty of disobeying
Davis's order to release his wife's hand. Cooper, Armstrong,
Reimer, and Davis moved to consolidate the three appeals. Larson
opposed consolidation. We issued an order on March 25, 2003,
stating that we would consolidate S-10327 and S-10431, but that
we would address S-10708 in a separate disposition.
III. DISCUSSION
We hold in these two appeals that the superior court
properly granted summary judgment to the defendants on Larson's
claims.3 We first consider in S-10327 whether Spring Creek's
limitations on contact visits satisfy the free exercise clauses
of the Federal and state Constitutions. We then consider whether
the rehabilitation right guaranteed by the Alaska Constitution
entitles a maximum security prisoner to have extensive physical
contact with visitors. In S-10431, we consider whether Davis and
Cooper violated Larson's due process rights; this inquiry
requires us to decide whether the temporary restriction of
Larson's contact visitation privileges implicated a protectable
liberty interest.
A. Larson's Free Exercise and Rehabilitation Claims
in S-10327
1. The superior court did not err in
holding that Spring Creek's visitation rules do
not violate the Federal Free Exercise Clause.
Defendants Cooper and Armstrong discuss two possible
standards for analyzing Larson's federal free exercise claim. We
need not decide which is the correct standard because Spring
Creek's visitation rules satisfy either standard.4
a. The Smith test
The United States Supreme Court held in Employment
Division, Department of Human Resources v. Smith that a neutral,
generally applicable law or regulation does not offend the free
exercise clause even if the law has an incidental - i.e.,
unintended - effect on religious practice.5 As defendants
contend, Spring Creek's visitation rules are unquestionably
constitutional under this standard: they do not discriminate
against religion on their face. They apply to all prisoners, and
Larson has not claimed that the rules are aimed at a particular
religion.6
b. The Turner test
The superior court held that Spring Creek's visitation
rules limiting physical contact do not violate the federal free
exercise clause because, following the test established by the
United States Supreme Court in Turner v. Safley, it reasoned that
the rules were "reasonably related to legitimate penological
interests."7 In Turner the Supreme Court reasoned that this
deferential standard was required to prevent courts from becoming
unduly involved in the "intractable problems" of prison
administration.8 The Court listed four factors that are relevant
to determining whether a regulation is reasonable.9 We hold that
Spring Creek's visitation rules satisfy each factor.
The first factor requires "a `valid, rational
connection' between the prison regulation and the legitimate
governmental interest put forward to justify it."10 Prison
security is a compelling governmental interest,11 and limitations
on contact visits are rationally related to this interest.12
Superintendent Armstrong stated in his affidavit that the types
of contact Larson seeks are specifically prohibited, because they
facilitate the smuggling of contraband. Larson does not contest
this assertion, and we have been given no basis for second-
guessing the judgment of prison administrators on this score.13
Larson asserts that correctional officers are primarily
responsible for introducing contraband into Spring Creek and
correctional facilities generally. But this proposition, if
true, is beside the point. Larson does not argue that contact
visits do not also create a significant risk of contraband
smuggling. Furthermore, Larson does not directly counter the
defendants' argument that the types of contact Larson desires
would exacerbate this problem. Thus, any dispute about whether
correctional officers are responsible for more smuggling than
visitors is not material to the issues properly before us.
The second Turner factor requires courts to examine
"whether there are alternative means of exercising the right that
remain open to prison inmates."14 Larson argues that Spring
Creek's contact limitations leave him no alternative means of
practicing "Physical Religious Worship" with his wife. But the
"alternative means" factor merely requires that adherents not be
"deprived of all forms of religious exercise," not that they
remain free to engage in the prohibited activity.15 In this case,
the contact limitations do not otherwise prevent Larson from
fully practicing his religious beliefs.
The third Turner factor requires courts to consider
"the impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of
prison resources generally."16 Cooper and Armstrong provide
evidence of several likely impacts, principally increased
security risks from expanded contact visits and the commensurate
burden on prison resources created by the need to mitigate those
risks through increased searches, monitoring, or both. Larson
claims that his requested "religious visits" would not pose
additional security risks and would not require additional
security measures, but these arguments fail to create genuine
issues of material fact for several reasons.
We note preliminarily that Larson did not offer any
admissible evidence regarding his religious practices to counter
the affidavits Cooper and Armstrong offered in support of their
motion for summary judgment. Rather, his opposition to their
motion and affidavits relied exclusively on his own unsworn
contentions. Ordinarily this would be cause for affirmance,
because non-movants may not rely upon assertions of fact in
unverified pleadings and memoranda to oppose a motion for summary
judgment.17 But we have held that "the pleadings of pro se
litigants should be held to less stringent standards than those
of lawyers," and have held that pro se litigants should be
informed of the need to submit affidavits or other evidence to
preclude summary judgment.18 The superior court's ruling did not
rely on Larson's failure to produce admissible evidence, and
instead appeared to treat Larson's pleadings as counter-
affidavits. We will do the same in this appeal.
Larson asserts that his wife would voluntarily submit
to a strip-search before visiting him, that he is always strip-
searched following contact visits, and that he could be placed in
a "dry cell" to further ensure that he had not received
contraband. But the governing regulations and constitutional law
do not permit strip-searches of visitors unless there are
reasonable grounds to suspect that the visitor possesses
contraband.19
Larson emphasizes that his wife would voluntarily
submit to such searches. Larson cannot waive his wife's Fourth
Amendment rights to be free from unreasonable searches. But even
if she unconditionally agreed to submit to pre-visit strip-
searches, we are not convinced that her submission would require
prison officials to grant Larson's request for extended contact
visitation privileges. Suspicionless searches of visitors and
prisoners20 would impose additional burdens on prison staff.
Superintendent Armstrong's affidavit established that the prison
staff is already short-handed. Intrusive searches are normally
not cross-gender, and searches of female visitors would be
disruptive, considering that only twelve of the 127 correctional
officers are female. Likewise, using a dry cell to prevent the
introduction of ingested contraband is even more resource-
intensive, because the inmate must be placed under observation in
the designated cell until the inmate excretes any ingested
contraband. Finally, the impacts resulting from Larson's own
visitation requests cannot be considered in isolation. Based on
the statements in Superintendent Armstrong's affidavit, we assume
that a significant number of other Spring Creek prisoners would
ask for similar privileges.21 Accordingly, the superior court did
not err in analyzing the third factor when it held that "the
impact of allowing for an exception is unduly burdensome to the
prison."
The final Turner factor requires courts to consider
whether there are any "ready alternatives" to the policy in
dispute.22 The Supreme Court made it clear, however, that "[t]his
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."23 The Court further suggested that only those
alternatives that would accommodate the prisoner's rights at "de
minimis cost to valid penological interests" could be considered
relevant to a court's inquiry into whether a regulation is
reasonable.24 Larson's proposed alternative of intensified
searches imposes more than de minimis costs. The only other
alternative that might accommodate Larson's claim would be
increased monitoring, which is also a resource-intensive
undertaking. Either way, Spring Creek would have to invest more
resources in security or simply accept the risk of increased
contraband smuggling that Larson's claimed exemption would
entail. There is no "obvious, easy alternative" to Spring
Creek's visitation rules.25
2. The superior court did not err in
holding that Spring Creek's visitation rules do
not violate the Alaska Constitution's free
exercise clause.
The superior court held that Spring Creek's visitation
rules do not violate the Alaska Constitution's free exercise
clause.26 Frank v. State established a two-part test governing
claims brought under this clause challenging facially neutral
laws.27 Under the first part of the test, the challenger must
satisfy three requirements: a religion is involved, the conduct
in question is religiously based, and the claimant is sincere in
his or her religious belief.28 Under the second part of the test,
courts must consider whether the conduct poses "some substantial
threat to public safety, peace or order,"29 or whether "there are
competing governmental interests that are `of the highest order
and . . . (are) not otherwise served.' "30
The superior court assumed that Larson satisfied the
first part of the test, and Cooper and Armstrong do not ask us to
re-visit this assumption. The superior court addressed the
second part of the Frank test by holding that Spring Creek's
visitation rules were narrowly tailored to serve the "compelling
state interest in secure prisons free from contraband." The
court further held that granting Larson's religious exemption by
adopting the alternative security measures he proposed would be
"unduly burdensome."
a. How to apply Frank's second part
Before they discuss Larson's claims under the free
exercise clause of the Alaska Constitution, Cooper and Armstrong
address at length the standard governing such claims. They
ultimately ask us to adopt a "compelling interest/narrow
tailoring" standard most commonly found in First Amendment
jurisprudence governing time, place, and manner restrictions and
commercial speech restrictions, rather than the "compelling
interest/least restrictive means" standard applied in federal
free exercise cases predating Employment Division, Department of
Human Resources v. Smith.31 Defendants argue that we have never
clearly articulated the second part of the standard we adopted in
Frank. Frank made it clear that only compelling state interests
could justify burdens on the exercise of religion.32 Frank and
our subsequent Alaska free exercise cases have not explained
exactly what degree of fit is required between the interest and
the means used to achieve it to satisfy the second part of the
Frank analysis.
Nonetheless, this case does not require the elaboration
defendants seek. Frank explained that the appropriate question,
after a court determines that the claimed exemption implicates a
compelling government interest, is "whether that interest, or any
other, will suffer if an exemption is granted to accommodate the
religious practice in issue."33 This test adequately addresses
the closeness of the fit between the state's interest and the
means used to achieve it. If an exemption would not harm the
government's interest, the means chosen to achieve the interest
were probably neither narrowly tailored nor least restrictive.
For purposes of this case, Frank and its Alaska progeny
adequately state the dispositive standard.
Moreover, it is not obvious why Frank's analysis must
coincide with either of the two formulations discussed in the
defendants' brief. The concepts of "narrow tailoring" and "least
restrictive means" no longer apply to prisoners' federal
constitutional claims or federal free exercise claims generally.34
We therefore see no reason to determine which of these
formulations best characterizes the Frank test in the context of
prisoner free exercise claims brought under Alaska's free
exercise clause.
Finally, in the context of prisoner free exercise
claims we think it appropriate to temper our application of the
Frank test in recognition of the Supreme Court's observation that
"[r]unning a prison is an inordinately difficult undertaking,"35
and its statement that " `prison administrators . . . , and not
the courts, [are] to make the difficult judgments concerning
institutional operations.' "36 This statement indicates that the
federal courts apply a highly deferential standard in reviewing
the decisions of prison administrators. Larson's case does not
require us to consider whether Alaska courts should apply an
equally deferential standard. Rather, we simply acknowledge, as
we did in Mathis v. Sauser, that "[s]ubjecting the day-to-day
judgments of prison officials to an inflexible strict-scrutiny
analysis would seriously hamper their ability to anticipate
security problems and to adopt innovative solutions to the
intractable problems of prison administration."37
b. Applying the second part of
the Frank test here
The defendants' appellate brief does not directly
discuss how the second part of the Frank test applies here.38 But
their analysis of the third and fourth Turner factors - impact of
accommodation and availability of ready alternatives -
convincingly addresses the values that underlie the second part
of the Frank test.
Superintendent Armstrong's affidavit provides evidence
that the contact visitation accommodations Larson seeks (and that
other prisoners would also then predictably claim) would require
significant resource outlays to mitigate against the resulting
increased risk of contraband smuggling. These outlays would
result from increased searches, monitoring, or both.39
Armstrong's affidavit states that budgetary constraints would
prevent Spring Creek from implementing the security measures
Larson proposes without jeopardizing other areas of Spring Creek.
Larson's claim that an accommodation would be virtually
without cost does not create genuine issues of material fact
precluding summary judgment for the defendants.40 The record in
this case establishes beyond dispute that Larson's recommendation
that he and his wife be strip-searched, or that he be placed in a
dry cell in connection with each "religious visit," would be
resource-intensive; the cost would be multiplied by the
accommodations needed to satisfy other prisoners who would
inevitably claim similar privileges.41 Likewise, we are
unpersuaded by Larson's claim that, because the "religious
visits" would take place in a room currently designated for
attorney-client visits, increased monitoring would not be
necessary. Larson asserts that the room has large one-way
observation mirrors that permit officers "in or around" the shift
supervisor's office across the hallway to monitor visits while
going about their other tasks; no additional prison resources
would have to be dedicated to the monitoring effort. As a matter
of law, this proposed accommodation raises no genuine factual
dispute. Monitoring contact visits is an important security
function that cannot be informally satisfied by random
observations by officers who happen to be going past the
observation mirrors.42
Spring Creek placed additional limits on contact visits
in 1999, but did not prohibit them entirely. The defendants
argue that the new rules are a proportionate response to the
risks posed by contact visits: the new rules limit the
opportunities to smuggle contraband while affording some
opportunity to engage in the natural desire to be physically
affectionate with friends and loved ones. Courts are generally
ill-positioned to second-guess prison administrators' judgment
that hand-holding between visitors and maximum security prisoners
would jeopardize the state's compelling interest in security. In
any event, we conclude that Larson has not demonstrated that any
genuine, material factual disputes precluded summary judgment for
defendants on Larson's state free exercise claim.
3. Spring Creek's visitation rules do not
infringe on Larson's right to rehabilitation.
Larson argues that his right to rehabilitation,
guaranteed by article 1, section 12 of the Alaska Constitution,
includes the right to "religious visits" described above, because
such visits promote rehabilitation "as nothing else can." Cooper
and Armstrong argue that this cannot be correct because nothing
in the text of article 1, section 12 or the constitutional
convention minutes supports a right to have the extended contact
visitation Larson seeks.43
We recognized in Brandon v. State, Department of
Corrections that "visitation privileges are a component of the
constitutional right to rehabilitation" guaranteed by article 1,
section 12 of the Alaska Constitution.44 But we have been
referred to nothing in article 1, section 12 or the
constitutional minutes that implies any intention to
constitutionalize extended contact visits for maximum security
prisoners or to preclude prisons from putting reasonable limits
on contact visitation of maximum security prisoners. Some
physical contact may well promote rehabilitation, but that would
not alone justify a conclusion in this case that Larson had an
unqualified constitutional right to extended contact visitation
with his wife. The security risks posed by contact visits and
the high costs of mitigating such risks convince us that the
degree of contact permitted between visitors and maximum security
prisoners lies within the sound discretion of prison
administrators.
4. The superior court did not err in
failing to grant Larson conjugal visits.
Larson also contends on appeal that he has a
constitutionally protected religious right to conjugal visits
with his wife. But in the superior court he expressly stated
that he was not making that contention. He therefore waived any
claim that he has a constitutional right to conjugal visits. He
cannot make such a claim for the first time in this appeal.45
B. Larson's Claims in S-10431
Larson argues in S-10431 that the superior court
erroneously granted summary judgment to Superintendent Cooper and
Officer Davis. In arguing error, he advances seven contentions:
(1) Davis's order to Larson that he release his wife's hand was
"illegal" and violated Larson's constitutional right to free
exercise of religion; (2) Davis had no legitimate reason to
demand that Larson release his wife's hand; (3) Larson has a
liberty interest, apparently originating in the First Amendment,
in having contact visitation with his wife; (4) Larson has a
state-created liberty interest, originating in Alaska
Constitution article I, section 12, in contact visitation; (5)
DOC violated Larson's due process rights by failing to give him
fair notice that hand-holding was not permissible; (6) Davis's
order to Larson violated the prison standard operating procedure,
thereby violating Larson's constitutional right to free exercise
of religion and due process; and (7) Larson was entitled to an
administrative hearing concerning his right to contact
visitation.
Larson provides no meaningful substantive discussion of
these theories.
Larson's first contention, that Davis and Cooper
violated his right to free exercise of religion, is resolved by
our discussion of his appeal in S-10327. Because the rules Davis
and Cooper enforced did not themselves violate the right to free
exercise of religion, enforcing those rules did not violate the
free exercise clauses, either.46
The rest of Larson's contentions in S-10431 turn on
whether under the circumstances of this dispute he has a
protectable federal or state liberty interest in contact
visitation. We conclude that he does not.
The United States Supreme Court has explained that
under the federal constitution's Fourteenth Amendment, " `[a]s
long as the conditions or degree of confinement to which the
prisoner is subjected is within the sentence imposed upon him and
is not otherwise violative of the Constitution, the Due Process
Clause does not in itself subject an inmate's treatment by prison
authorities to judicial oversight.' "47 The Court has explained
that the guarantee of due process does not provide a right to
parole,48 freedom from transfer to higher-security facilities,49 or
a right to avoid segregation from the general prison population.50
We conclude that if the federal due process clause does
not guarantee these benefits, it necessarily must not provide a
lesser right to contact visitation.
We next consider whether Alaska law has created a
liberty interest that is protected by the federal constitution's
Fourteenth Amendment. The United States Supreme Court explained
in Sandin v. Conner that in the prison context, state-created
liberty interests protected by the Fourteenth Amendment "will be
generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life."51
In Sandin, the Court ruled that "discipline in segregated
confinement did not present the type of atypical, significant
deprivation in which a State might conceivably create a liberty
interest."52 The Court reasoned that placing a prisoner in
solitary confinement for thirty days "did not work a major
disruption in his environment."53
Larson was denied contact visitation for seventy-three
days but was allowed secure visitation throughout that period.
Whether or not the temporary suspension of all visitation might
implicate a liberty interest, we agree with the defendants that
temporarily suspending contact visitation, while continuing to
allow secure visitation, is not so atypical and significant a
hardship beyond ordinary prison life that it implicates a
protected liberty interest.54
Finally, we consider Larson's contention that the
Alaska Constitution creates a protectable liberty interest in
contact visitation. Larson argues that defendants Cooper and
Davis deprived him of a liberty interest he claims was
established by the reformation clause of article I, section 12 of
the Alaska Constitution. That clause states in part, "[c]riminal
administration shall be based upon the following: the need for
protecting the public, community condemnation of the offender,
the rights of victims of crimes, restitution from the offender,
and the principle of reformation."
In Brandon v. State, Department of Corrections we
considered article I, section 12 of the Alaska Constitution in
the context of the transfer of a prisoner out of state,
potentially preventing the prisoner's relatives from visiting
him.55 We recognized that visitation was "a component of the
constitutional right to rehabilitation."56 But we declined to
define the scope of visitation privileges protected by the
constitution and any limits on the exercise of those privileges;
instead, we explained that "[s]uch definitions will have to be
achieved in future adjudications."57 Today we hold that a
temporary suspension of contact visitation is a permissible
limitation on visitation.
In Matson v. Commercial Fisheries Entry Commission, we
explained that "[f]or the due process clause to apply, there must
be `the deprivation of an individual interest of sufficient
importance to warrant constitutional protection.' "58 Although
visitation implicates the constitutional right to reformation,
Cooper and Davis did not deprive Larson of visitation. They
temporarily deprived Larson of contact visitation as a form of
prison discipline. As the United States Supreme Court noted in
Overton v. Bazzetta, many states "us[e] withdrawal of visitation
privileges for a limited period as a regular means of effecting
prison discipline. This is not a dramatic departure from
accepted standards for conditions of confinement."59 But as the
Court recognized, "[i]f the withdrawal of all visitation
privileges were permanent or for a much longer period, or if it
were applied in an arbitrary manner to a particular inmate, the
case would present different considerations."60 In this case, the
temporary interference with Larson's contact visitation
privileges as a means of effecting prison discipline was not so
severe that it implicated a constitutionally protected liberty
interest.
V. CONCLUSION
For these reasons, we AFFIRM the superior court's
grants of summary judgment.61
_______________________________
1 42 U.S.C. 2000bb et seq. (2000).
2 Larson no longer contends that the RFRA affords grounds for
relief in his suit against Armstrong and Cooper. The United
States Supreme Court held the RFRA unconstitutional in City of
Boerne v. Flores, 521 U.S. 507, 536 (1997).
3 "We review a grant of summary judgment de novo. All
reasonable factual inferences are drawn in favor of the non-
moving party to determine whether genuine issues of material fact
exist and whether the moving party is entitled to judgment as a
matter of law." Wongittilin v. State, 36 P.3d 678, 680 (Alaska
2001) (original emphasis) (internal quotation and citation
omitted). In reviewing questions of law, we apply our
independent judgment and adopt the rule of law that is most
persuasive in light of precedent, reason, and policy. Mathis v.
Sauser, 942 P.2d 1117, 1120 (Alaska 1997).
4 Cf. Hines v. South Carolina Dep't of Corr., 148 F.3d 353,
357 (4th Cir. 1998) (declining to address question of which free
exercise standard applied because policy at issue was valid under
either approach).
5 Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872,
878-79 (1990).
6 Facially neutral laws of general applicability can still
offend the free exercise clause if they are clearly aimed at a
particular religion, Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520 (1993), but Larson has not alleged
that the disputed visitation rules were enacted with any
discriminatory animus.
7 Turner v. Safley, 482 U.S. 78, 89 (1987); see also O'Lone v.
Estate of Shabazz, 482 U.S. 342, 349 (1987) (applying Turner test
to prisoner free exercise claim).
8 Turner, 482 U.S. at 84-85, 89 (explaining that courts are
ill-equipped to deal with problems of prison administration, and
that these problems have been committed to legislative and
executive branches).
9 Id. at 89.
10 Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).
11 Pell v. Procunier, 417 U.S. 817, 823 (1974) ("[C]entral to
all other corrections goals is the institutional consideration of
internal security within the corrections facilities
themselves."); see also Hines, 148 F.3d at 358 (stating that
institutional security is compelling interest); May v. Baldwin,
109 F.3d 557, 563 (9th Cir. 1997) (same).
12 Block, 468 U.S. at 586 ("That there is a valid, rational
connection between a ban on contact visits and internal security
of a detention facility is too obvious to warrant extended
discussion.").
13 See, e.g., O'Lone, 482 U.S. at 353 ("We take this
opportunity to reaffirm our refusal, even where claims are made
under the First Amendment, to `substitute our judgment on . . .
difficult and sensitive matters of institutional administration .
. . .' ") (quoting Block, 468 U.S. at 588).
14 Turner, 482 U.S. at 90.
15 O'Lone, 482 U.S. at 352 (emphasis added) (observing that
Muslims who were prevented from attending Jumu'ah by prison
regulation remained free to "observe a number of their religious
obligations").
16 Turner, 482 U.S. at 90.
17 Brock v. Rogers & Babler, Inc., 536 P.2d 778, 783 (Alaska
1975).
18 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (original
emphasis).
19 22 Alaska Administrative Code (AAC) 05.130(b) (1991) ("In
order to have contact visitation with a prisoner, a visitor may
be required to submit to a strip search, if reasonable grounds
exist to believe that the visitor is in possession of
contraband."); see also Leverette v. Bell, 247 F.3d 160, 167 (4th
Cir. 2001) (collecting cases holding that invasive search of
visitor must be supported by reasonable suspicion that visitor is
carrying contraband).
20 Bell v. Wolfish, 441 U.S. 520, 558-60 (1979) (stating that
suspicionless body cavity search of all inmates at detention
facility following every contact visit is not unreasonable).
21 Cf. Turner, 482 U.S. at 90 ("When accommodation of an
asserted right will have a significant ripple effect on fellow
inmates or on prison staff, courts should be particularly
deferential to the informed discretion of corrections
officials.").
22 Id.
23 Id. at 90-91.
24 Id. at 91.
25 Id. at 90.
26 Alaska Const. art. 1, 4.
27 Frank v. State, 604 P.2d 1068, 1070-73 (Alaska 1979).
28 Id. at 1071-73; see also Swanner v. Anchorage Equal Rights
Comm'n, 874 P.2d 274, 281 (Alaska 1994).
29 Frank, 604 P.2d at 1070 (quoting Sherbert v. Verner, 374
U.S. 398, 403 (1963)).
30 Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).
31 See Employment Div., Dep't Human Res. v. Smith, 494 U.S. 872
(1990). We chose not to follow Smith in Swanner, 874 P.2d at 280-
81, and instead chose to evaluate free exercise claims brought
under the Alaska Constitution using the test established in
Frank.
32 Frank, 604 P.2d at 1073.
33 Id.
34 See supra Part III.A.1 (discussing Turner and Smith
standards).
35 Turner v. Safley, 482 U.S. 78, 84-85 (1987); see also
Overton v. Bazzetta, 123 S. Ct. 2162, 2167 (2003) (according
"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").
36 Turner, 482 U.S. at 89 (quoting Jones v. North Carolina
Prisoners' Union, 433 U.S. 119, 128 (1977)).
37 Mathis v. Sauser, 942 P.2d 1117, 1121 n.7 (Alaska 1997)
(quoting Turner, 482 U.S. at 89).
38 604 P.2d at 1073-74.
39 See the discussion above in Part III.A.1.b.
40 See id. (discussing increased monitoring and search costs
associated with granting Larson's requested accommodation in
context of Turner's third factor).
41 See id.
42 Larson contends that Spring Creek has never had to increase
staff to monitor the attorney-client visitation room in the past.
But past staffing needs are based on past visitation rules; they
are irrelevant to the expanded visitation Larson seeks and others
would then demand.
43 The superior court did not reach this issue although it was
briefed below by both parties.
44 Brandon v. State, Dep't of Corrs., 938 P.2d 1029, 1032 n.2
(Alaska 1997).
45 Pasco v. State, Dep't of Admin., 45 P.3d 325, 328-29 (Alaska
2002) (holding that this court will not consider arguments raised
for first time on appeal).
46 We consider in S-10708 the separate issue whether prison
officials had an improper retaliatory motive for continuing to
deny contact visitation to Larson for about two months after the
prison disciplinary committee found him not guilty of disobeying
a direct order.
47 Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460-61
(1989) (quoting Montayne v. Haymes, 427 U.S. 236, 242 (1976)).
48 Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442
U.S. 1, 7 (1979).
49 Meachum v. Fano, 427 U.S. 215, 225 (1976).
50 Hewitt v. Helms, 459 U.S. 460, 468 (1983).
51 Sandin v. Conner, 515 U.S. 472, 484 (1995) (citation
omitted).
52 Id. at 486.
53 Id.
54 Cf. Ware v. Morrison, 276 F.3d 385, 387 (8th Cir. 2002)
(holding prisoner's "loss of visitation privileges is within the
ordinary incidents of confinement and cannot be considered an
atypical and significant hardship"); Blair v. Loomis, 1 F. Supp.
2d 769, 772-73 (N.D. Ohio 1998); Drayton v. Comm'r of Corrs., 751
N.E.2d 916, 919-20 (Mass. App. 2001) (loss of visitation
privileges for one year did not implicate liberty interests
protected by Fourteenth Amendment).
55 Brandon v. State, Dep't of Corrs., 938 P.2d 1029, 1030-32
(Alaska 1997).
56 Id. at 1032 n.2.
57 Id.
58 Matson v. Commercial Fisheries Entry Comm'n, 785 P.2d 1200,
1206 (Alaska 1990) (quoting Nichols v. Eckert, 504 P.2d 1359,
1362 (Alaska 1973)).
59 Overton v. Bazzetta, 123 S. Ct. 2162, 2170 (2003).
60 Id.
61 Our conclusion that Cooper and Davis did not deprive Larson
of a protectable liberty interest in contact visitation
necessarily disposes of his contention that it was a denial of
his procedural due process rights not to give him a hearing on
his alleged right to have contact visitation. He was given a
hearing after he was charged with disobeying a direct order.
This hearing gave him an opportunity to dispute the adequacy of
notice.
