De Lancie v. Superior Court of State of Cal., San Mateo County

Page 20

159 Cal.Rptr. 20

97 Cal.App.3d 519

Marlene DE LANCIE, Lou Jones, and Emily Marks Skolnick, as taxpayers of the County of San Mateo, Joseph Ayala, individually and on behalf of all persons similarly situated, Shelley Ayala, individually and on behalf of all persons similarly situated, and Dennis Woodman, individually and on behalf of all persons similarly situated, Petitioners, v. The SUPERIOR COURT OF the STATE OF CALIFORNIA, COUNTY OF SAN MATEO, Respondent John McDONALD, Sheriff of San Mateo County, Harvey Rutenberg, Commander of the Main Jail Facility, County of San Mateo, Keith Sorenson, District Attorney, County of San Mateo, James V. Fitzgerald, John M. Ward, Edward J. Bacciocco, Jr., William H. Royer and Fred Lyon, members of the Board of Supervisors of the County of San Mateo, Real Parties in Interest.

Civ. 44283.

Court of Appeal, First District, Division 1, California.

Oct. 5, 1979.

For Opinion on Hearing, see 183 Cal.Rptr.866, 647 P.2d 142.

Thomas J. Nolan, Jr., Palo Alto, Dorothy Glancy, University of Santa Clara, School of Law, Santa Clara, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for petitioners.

Keith C. Sorenson, Dist. Atty. of the County of San Mateo, James W. Foley, David Levy, Deputy Dist. Attys., Redwood City, for respondent and real parties in interest.

RACANELLI, Presiding Justice.

Upon petitioners' application to review the propriety of respondent's ruling sustaining a demurrer without leave to amend, we granted an alternative writ of mandate to examine significant constitutional questions relating to the rights of pretrial detainees and their visitors to be free from indiscriminate covert electronic surveillance. Our examination in light of governing principles impels a determination that petitioners state a valid cause of action independently grounded upon the state Constitution's right of privacy (Cal.Const., art. I, § 1); ¹ to that extent, the general demurrer interposed by real parties must be overruled. Our reasons follow.

I Propriety of Extraordinary Review

Preliminarily we address the question whether the procedural error claimed is properly reviewable in mandamus. While we recognize that the use of the prerogative writ to review rulings on questions of pleadings is generally disfavored (Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379) nonetheless when important issues of significant legal impact are involved, as here, mandamus is appropriate to adjudicate such issues in place of later resolution on direct appeal particularly where the challenged order would otherwise bar a substantial part of the cause from being heard on the merits. (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807, 94 Cal.Rptr. 796, 484 P.2d 964.) Moreover, having issued our alternative writ, we have concluded that the normal remedy of appeal is inadequate. (See Morse v. Municipal Court (1974) 13 Cal.3d 149, 155, 118 Cal.Rptr. 14, 529 P.2d 46; Brown v. Superior Court (1971) 5 Cal.3d 509, 515, 96 Cal.Rptr. 584, 487 P.2d 1224; People v. El Dorado (1971) 5 Cal.3d 480, 491, 96 Cal.Rptr. 553, 487 P.2d 1193.) Accordingly, we turn to the merits of the petition.

The Pleadings

Petitioners (three taxpayers, a pretrial detainee, his wife and frequent visitor, and an attorney representing several pretrial detainees) filed an individual and class action complaint against real parties (the county sheriff and jail commander, district attorney and the individual members of the board of supervisors) challenging the legality of a covert electronic surveillance system operating within the county jail through which private conversations among detainees and their visitors are routinely monitored and recorded at random and the information so acquired disseminated to law enforcement authorities for their official use. Following the sustaining of successive demurrers with leave to amend, petitioners filed a third amended complaint for injunctive and declaratory relief containing 14 causes of action; the trial court upheld real parties' general demurrer without leave to amend as to five of the counts pleaded ² which are the subject of the petition.

The parties agree that the gravamen of the complaint concerns the validity of the electronic surveillance system maintained within the county jail used to routinely monitor and record conversations (1) between detainees and their visitors conducted over an intercom telephone system installed for that singular purpose and (2) among detainees throughout the jail facility. Petitioners contend that such conduct is in derogation of the rights guaranteed under the several provisions of both federal and state Constitutions and statutes hereafter discussed. We set forth the substance of the several counts under review:

First Cause of Action: Petitioners claim a violation of the right of privacy guaranteed by article I, section 1, of the California Constitution, an unreasonable search and seizure (U.S.Const., 4th and 14th Amends.; Cal.Const., art. I, § 13), and an illegal interception of oral communications under the provisions of title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C., §§ 2510-2520), based upon the following averments: (1) detainees' ³ only means of oral communication with visitors is through a special intercom telephone system installed in the designating visiting areas where the communicants are separated by a thick, sound proof transparent glass panel; (2) the system is designed to permit covert electronic surveillance and taping at a central monitoring station; (3) a guard is stationed on the detainees' side of the panel at a "discreet distance" Conveying an impression that the conversations between detainees and visitors cannot be overheard, thus creating an illusory but reasonable expectation of privacy by the communicants; (4) the secret monitoring and recording is conducted at random, with Neither regulatory guidelines nor probable cause to Suspect any illegality, usually at the request of law enforcement agencies for the primary purpose of gathering evidence for use against such detainees (and others) in criminal proceedings.

Second Cause of Action: Petitioners complain of a similar invasion of private conversations among detainees "in every room in the jail" through use of a comparable, indiscriminate covert surveillance system employed for similar purposes.

Tenth Cause of Action: It is alleged that awareness of the existence of such unlawful routine surveillance has a "chilling effect" on the rights of free speech, association and religion guaranteed to petitioner detainees, visitors and attorneys under the First and Fourteenth Amendments of the federal Constitution and counterpart provisions of the state Constitution.

Eleventh Cause of Action: Petitioner detainees allege that such unlawful conduct constitutes an unnecessary and summary punishment repugnant to the due process and cruel and unusual punishment clauses (U.S.Const., 8th and 14th Amends.; Cal.Const., art. I, §§ 7 and 17).

Twelfth Cause of Action: The final count presents an equal protection claim based upon unequal treatment of incarcerated detainees in that their private conversations are subject to clandestine surveillance solely by reason of financial inability to post bail.

Contentions

While resting their claim of privacy upon both state and federal grounds, the principal theory of relief underlying the first and second causes of action is based upon the right of privacy extended under article I, section 1, of the state Constitution. Petitioners contend that such independent constitutional right represents a fundamental interest invulnerable to state infringement in the absence of a showing of overriding governmental interests justifying such intrusion by the least restrictive alternative. (See White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222.) In examining the merits of those contentions, we are obliged to accept as true all of the material factual averments set forth in the causes of action under review. (See White v. Davis, supra, at p. 765, 120 Cal.Rptr. 94, 533 P.2d 222; Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 117 Cal.Rptr. 541, 528 P.2d 357; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 827, 134 Cal.Rptr. 839; see generally 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 800, pp. 2413-2414.)

Real parties, relying on an impressive array of precedents (see generally fn. 5, Post ), vigorously dispute petitioners' claim arguing that as a matter of law no reasonable expectation of privacy exists in a jail-house setting where traditional interests of institutional security justify official surveillance. Nor, real parties contend, do clandestine methods of monitoring jail-house conversations establish a deliberate attempt to create a reasonable expectation of privacy protectable on Fourth Amendment grounds. (See People v. Hill (1974) 12 Cal.3d 731, 764-765, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Finchum (1973) 33 Cal.App.3d 787, 791, 109 Cal.Rptr. 319; United States v. Hearst (9th Cir. 1977) 563 F.2d 1331.)

II Right of Privacy

The focal point of our inquiry centers upon whether petitioners state a prima facie violation of a protectable right of privacy. (See White v. Davis, supra, 13 Cal.3d 757, 765, 120 Cal.Rptr. 94, 533 P.2d 222.) As earlier noted, for purposes of review we must treat real parties' general demurrer as admitting all of the material facts properly pleaded. (Furey v. City of Sacramento (1979) 24 Cal.3d 862, 866, 157 Cal.Rptr. 684, 598 P.2d 844; Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.) Thus, we must assume that the San Mateo County Jail officials are regularly engaged in maintaining and operating, at public expense, a...