*1 25, 1980, Argued and June submitted 4, affirmed modified March al, DAVID J. STERLING et Respondents, v. al,
CUPP et Petitioners, al, DERR et Intervenor-Petitioners.
(TC 26915) CA SC SC
Scott Assistant argued petitioners. him on the brief the cause for With Attorney General, L. Redden, Bar- James A. Walter were Brainard, Certified rie, General, A. Solicitor and Barbara Law Student.
Terry argued Pressler, Salem, cause and filed a A. intervenor-petitioners. brief argued Davidson, Silverton, cause and filed a Jossi respondents. brief
UNDE, J.
613 LINDE, J.
Plaintiffs, inmates are of the Oregon who male State Penitentiary, enjoin Superintendent Cupp sued to and other officials from female to assigning guards duties which involve frisking male observation toilets, in such relief showers or or for other as the court deemed After a number proper. allowing female corrections as defen- parties officers to intervene dant, the and enjoined Cupp court defendants Watson from "assigning female in any position correctional officers job description or actual duties include frisks or pat-downs of male prisoners, except emergency situa- tions.” On defendants contended appeal, respectively no constitutional interest of was violated and plaintiffs the order employment rights contravened the equal female corrections of Appeals officers. Court affirmed order, (1980), 44 Or we App 755 allowed review. With modification, some textual subject to such fur- ther court, motion as defendants make the circuit we affirm the order. clarity,
For we as refer parties prisoners, OSP, and the officers their respective posi- rather than tions as parties this suit.
I. The Constitutional Premises. prisoners’ to the challenge legality subject ing them touching personally offensive observation guards opposite sex invoked a number of provisions Oregon well as of the United States Constitution.1 13, I, 20, complaint §§ 1 The cited Or art 16 and Const and US Const IV, V, I, I, complaint § amendments VIH and XIV. The art amended omitted 10 I, 3,15, IX, §§ and added art 33 and US added US Const amend omitted Const amends IV V. repeatedly challenges validity government This court has stated that "generalized action should neither take the form of constitutional attack without specific Washington provisions,” Corp. reference to textual see Avenue v. Fifth Co., n.2, (1978), merely string 282 594 Or 581 P2d nor cite provisions setting analyzing constitutional without forth text of each and application issue, Examiners, Megdal to the contention at see v. Board Dental 293, 296, (1980), Revenue, Rogers Department 288 Or P2d 284 Or v. n.2, 587 P2d case, plaintiffs In this did at least cite relevant sections of court, argument although they developed Constitution the trial their under art I, only commonly § response inquiry, perhaps because counsel this court’s tend to search sources law. note 5. in case See text at *5 614 law, is to the analyze including state’s proper sequence law, reaching before a federal constitu
its constitutional
is
not for
sake either of
required,
tional claim. This
the
deny
the
does not
parochialism
style,
or of
but because
state
the
under the federal Constitution when
any right claimed
See,
fully
in fact is
met
state law.
by
claim before the court
Deiz,
277, 613
Oregonian
State ex
Pub. Co. v.
289 Or
e.g.,
rel
305,
(1980);
P2d
v.
286 Or
454-455,
incongruous surveillance, while very whose functions imply tions in the sense in invoke the concept privacy "private” and functions are considered bodily parts other cultures. in our and fit under that in this sense
Though "privacy” struggle no need to even in there is prisons, federal rubric contemporary They difficulties here. arise because with its others, routinely many like prisoners’ rights, claims courts, judicial taken to federal so have been bring that counsel secondary commentary and the opinions case, courts, repeat solely as in this tend before state Constitution’s But the United States premises.5 federal not go beyond as such does penal principles concern with US unusual punishments.” of attainder and "cruel and bills I, 9, 10, on state §§ art amend 8. Its restraints Const generally applicable can be derived from only practices and equal due guarantees, including process constitutional constitutions, 14. State US Const amend protection. directed toward contrast, contain expressly often clauses humane prosecuted treatment of those guaranteeing crime. included in its has long Constitution and unusual besides the of cruel Rights, prohibition
Bill of no that have provisions no less than five such punishments, that punish It to guarantee federal undertakes parallel. not "vindictive designed ment shall be for reformation *7 individual,7 guilty beyond and shall not reach justice”6 5See, Dignity e.g. Singer, Privacy, Autonomy, in the Prison: A Prelimi- and Degradation nary Inquiry Concerning Aspects Process in Our Constitutional Prisoners’Rights Prisons, (1972); Comment, Under A 21 Buff L Rev 669 Review of (1980). Amendments, First, Fifth, Eighth Duquesne And L Rev 683 see 18 1980). (D. 22, Or, Aug. Atiyeh, Capps/West v. No. 80-6014 considering precluded state law before from Not that a federal court right, have done so. An reaching decisions the claimed federal but few federal Instruction, County 299 F example Bd. Public is National Ed. Ass’n. v. Lee 1972) (5th (MD 834, 1969), rev’d, after certification Supp Fla 467 F2d 447 Cir 839 Supreme the Florida Court. to 6 I, § art 15: Or Const principles punishment on the be founded "Laws for the of crime shall reformation, justice.” and not of vindictive 7 I, § Const art 25: Or blood, corruption of estate.” or forfeiture shall work "No conviction
617 to forbid excessive fines and disproportionately heavy and, here, penalties,8 most to "rigorous” relevant confine treatment of prisoners within constitutional bounds of I, necessity. § Or Const art 13.9
Provisions like early these have antecedents as as constitution,10 New 1783 Hampshire’s coming Oregon by 11 way Ohio reflect a They Indiana. widespread interest in penal reform in the states during post- Revolutionary decades.12 The clauses are not as universal as more familiar parts of the bills of and ideas rights, humanitarian "reform” changed have with time and among the states. The Pennsylvania Constitution, first, among the provided that the penal laws were to be reformed and (i.e. punishments made less "sanguinary” bloody) by sub stituting labor, imprisonment at hard open observation public. Penn. §§ Frame of Government 39 (1776).13 Practice often did aspirations. not follow Even in theory, "Golden Age of could not be Penology” discerned 8 I, § Or Const art 16: required, imposed. “Excessive bail shall not be nor excessive fines Cruel punishments inflicted, penalties and unusual shall not be but all shall be
proportioned to the offense. . . .” I, § Or Const art 13: person arrested, jail, unnecessary "No or confined in shall be treated with rigor.” penalties ought proportioned "XV1U. All nature of the legislature punishment offence. No wise will affix the same to the crimes of theft, forgery like, treason; they and the those do to of murder and offences; undistinguishing severity against where the same is exerted all people forget themselves, are led to the real distinction in the crimes flagrant compunction they commit the most with as little as do those of the lightest dye: impolitic sanguinary For the same reason a multitude of laws is both unjust. reform, design punishments being The true of all exterminate, mankind.” Schwartz, (1971). Rights The Bill of Swindler, See 3 Sources and Documents of States United Constitutions (1974), 1802, VlU, 10,14 554; §§ Ohio Const art in volume 7 at and Indiana Const I, IX, §§ art "unnecessary rigor” § 14-16 at 366 and article 4 at 374. The provision appeared early 1796, XI, § as 1796.SeeTenn Const art 13 in volume 9 (1979). at 148 (1971). generally, Rothman, 57-62,71-100 Discovery Asylum See 13Pennsylvania’s leadership originating penitentiary institution (the Jail) Pennsyl Walnut Street Penn reflected the tradition of William and the Quakers. Teeters, 1-12, Penitentiary vania See The Cradle of the 27-62
618 In Tennessee Constitution before the 1870’s.14 1870 the prisons, for "the of and comfortable provided erection safe of of the humane treatment the and inspection prisons, constitutional I, § Term art But while prisoners.” Const 32. differ, a many thought states present point texts and the treatment humanizing commitment laws penal of constitutional of offenders to rank with principles other magnitude independently Congress concern of any took the of Madison’s Bill of The same commitment Rights. by and two adopted form of interstate compacts statutes, inmates of correc enacted as which provide in a reasonable and tional institutions "shall be treated 421.284, IV(5); ORS 421.245, manner.” Art. humane ORS IV(e). in this tradit I, Art. 13 is Oregon’s article section ion.15
It interest asserted well be that one of the brought in this can within case be kinds unexpressed said to be "privacy” protected [14] penal worthy A progress until the 1870’s. "There was little name
punitive philosophy expression in predominated prison and found in the field rules, treatment, regimentation, rigid repression silence severe mass and small, unsanitary, food, punishments, poor in confinement and insufficient cells, rudimentary poorly lighted anything at efforts and lack of but most institutions, gate sign of most the main rehabilitation. dollar was over shops prison gangs, exploited contract labor was limit in chain systems lease unchecked. where shameful abuses went time, which, might period appeared mark the "The 1870’s at the was a it (New beginning Age Penology.” Elmira of a In this decade "Golden York) men, opened program Reformatory, reformatory with a the first was sys- rehabilitation, reformation, utilizing parole having as its aim and separate tematically country. first institutions first time in this (later opened The National for women were American) in Indiana and Massachusetts. Congress, in organized its first held Prison was and at Association Principles so adopted advanced Cincinnati Declaration changes. thought The first that it with few basic was re-affirmed in 1930 Congress, was attended International Prison leading held in London atmosphere of that American and the total advocates reform Congress progress.” also was one of (The Association American Correctional Manual of Correctional Standards 11-12 1966)). (3d ed 15 ("... (1976) Georgia § 2-114 nor Equivalent Const clauses are found also in arrest, arrested, prison”); any being person or in while under I, shall Term Const abused I, I, (1971);Wyo § (1980); § § Const art art Utah art Const (1977) ("No unnecessary jail person shall be treated arrested and confined in inspection prisons, rigor. prisons, The erection safe and comfortable for.”) provided the humane treatment of shall be See Gunther of the United States Constitution. penumbras (8th 1980) State F2d 1079 Cir Reform., v. Iowa Men’s 2942, 64 Ed 2d den. 446 US L cert. 100 S Ct *9 in three not to be "treated with respects guarantee But I, 13, in section is a unnecessary rigor” Oregon’s article cogent premise "right privacy.” more than such a federal First, in provision it has an source unquestioned the con- adopting included in the act of expressly political stitution.
Second, that is addressed provision specifically "arrested, jail.” the treatment or confined in persons rights privacy, argument Unlike there can be no that under this conviction rights guarantee are forfeited crime or under custody, lawful as those are the police circumstances to which its is directed. protection
Third, "privacy” that its elastic- poses paradox in ity the face of important contradicts public policies theoretical premise right as a so fundamental as to be contrast, I, in the implied Constitution; national article 13, section itself makes the practices the test of it necessity controls. reasons,
For these in this case the con- although I, 13, siderations under "privacy” or under article section same, are much the we the section of proceed under our own constitution directly practices. addressed to prison
II. Opposite-sex Indignity. Search as The guarantee against "unnecessary rigor” is not directed at specifically "punish methods or conditions ment,” I, 16, which are the sections 15 and focus of article as section 13 jailed; extends to who is arrested or anyone it nor is a standard to such only historically confined chain, "rigorous” practices shackles, as the ball and or to conditions, physically brutal these are though treatment or the most obvious Thus the Indiana examples. Supreme wrote, Court officers for sustaining police a conviction assault and battery on a prisoner:
"The
protects persons charged
law
with crime from ill
unjust
Only
reasonable and
treatment
at all times.
arrest,
necessary
. .
making
force
an
. ho
be used
arrested,
jail,
treated
person
or confined
shall be
1,
15, art.
. . .
unnecessary rigor,’ section
Const.
'While the
discharge
in the
police
proper
law
officer
his
protects
duties,
just
effectively protect
it must at the same time
S.
the abuse of
U.
v.
police.’
the individual
from
(1917)
352,
Philippine
354.”
Pabalan
571,
State,
79 ALR
v.
203 Ind
Bonahoon
NE
(1931).16
rigor”
equated
to be
"Unnecessary
is not
Thus
beatings
brutality.
or other forms
Geor
only with
15;
clause,
note
gia’s
supra
of the constitutional
phrasing
Since it is
that
shall
"be abused.”
simply
first
"unnecessary”
rigor
proscribed,
question
particular
police
this clause is whether a
under
as an
to the extent
practice
recognized
would
abuse
justified
necessity.
it cannot be
There is
to broaden this
attempt
no
case
pervasive
so as to
numerous
principle
disregard
persons
conditions intrinsic to the life of
to which
*10
their
not
liberty
willingly
who have not forfeited
would
rights
that
many
submit. Those sentenced
forfeit
is
that
freedom. Here there
no claim
chal-
accompany
"patdown”
"shakedown” or
searches
themselves
lenged
properly
performed by
or
be
of-
improper
were
could
Only
same
as the
the forced
prisoners.
ficers of the
sex
touching by guards
opposite
exposure
intimate
sex,
in the
context of the
here
prison,
institutional
In
sphere.
claimed to invade the constitutionally
protected
brief,
are to the
objections
imposition
prisoners’
invasion
re-
indignity,
prisoners’
needless
to an
that
insofar as
siduum of
an
personal dignity
imposition
necessity.
it goes beyond recognized
first,
convicted
widely recognized,
It is
that even
also that
retain
prisoners
personal dignity,
claims
rela-
under the conditions of arrest
imprisonment
issues.
sensitive
poses particularly
tion between
sexes
statements
underlie most
assumptions
contemporary
These
Thus the
institutions.
penal
the relevant
standards
by the
published
Depart-
Standards
for Corrections
Federal
develops and
facility
"[e]ach
postulate
ment of Justice
16
recovery
physical
support
Indiana section has also been cited to
tort
(1974);
State,
App
v.
Matovina
v.
159 Ind
NE2d
abuse. See Roberts
Hult,
App
Ind
of female Standards for Department’s stress, Bureau of Prisons in connection "[njatu newly prisoners, with searches of admitted rally, completely separate admission for should women from that for men and should be conducted female staff They "[t]he members.” continue with the advice that fol lowing conditions must be met if difficulties are to be jails housing prisoners: avoided in both male and female "1. Women must be completely separated from prisoners,
male communication possibility with no by sight or sound.
"2. All supervision of female must be female
employees. In larger jail a full-time matron provide should constant supervision. jails Smaller part-time have a key matron who retains the the women’s section and is on call as needed.
"3. employees Male must be forbidden to enter the wom
en’s thay section unless are accompanied matron.”18 principles
These federal standards reflect also found in sources, nonofficial such as the American Bar Association’s Standards of Criminal Justice19 and the Justice, (Department Draft Federal Standards for Corrections June 1978) added). (emphasis indignities The kind of at which these terms are directed are described in *11 Schwartz, Deprivation Privacy Prerequisite”: as a "Functional The Case the of of (1972). Prison, 63 J Crim L C & P S 229 (United Operation Management The Jail: It’s and 71-72 States Bureau Prisons). of searches, relating The American Bar Association’s standards referring specifically gender, generally while not to distinctions of person, states conducting "[i]n searches of the correctional authorities should strive to 6.6(f) preserve dignity integrity quoted prisoner.” and in Standard Prisoners, Relating Legal Tentative Standards to the Status 14 Am Cr Draft of of L Bev
American Correctional Manual of Correction Association’s Indeed, have been a al Standards.20 same principles United recognized worldwide concern Nations and by formulations in other multinational bodies.21 The various in are these different sources not constitutional themselves cite of expressions We them here as contemporary law. harsh, degrad concern with minimizing needlessly same is dehumanizing prisoners or of ex ing, treatment in I, article Thus the questions section 13. be pressed a searches practice body considered are whether includ sex, sexually opposite intimate areas officers ing clothed, though even remains constitutes prisoner so, justified and if whether it is cognizable indignity necessity. handling employ- supervision female "All and must be female jails, provided; larger
ees. In the 24-hour service should be the retain the matron jails provided by will smaller service be a resident matron who prisoner keys quartern a female to the women’s available whenever be necessary discharged to enter the women’s received quarters. whenever it is employees enter the Under no circumstances should male women’s matron, prisoner quarters except company with and no male should permitted quarters.” ever be access women’s (The Association, Manual of Correctional Standards 61 American Correctional 1966)). (3d ed, Rights, proclaimed "as a common Universal Declaration Human "promote respect . . . universal standard of achievement” under directive to Charter, for, of, rights” Nations and observance human Article 55 of United in subjected cruel, 5: torture or to inhuman or in Article "No one shall be states added.) degrading punishment.” (Emphasis In the later Internation- treatment or in, principle repeated Part Rights, and Political al Covenant Civil Article HI, spelled expanded in Part Article 10: 7 and out and feather humanity persons deprived liberty be treated with "1. All shall their person. respect dignity the human the inherent (a) circumstances, shall, exceptional persons be "2. Accused save subject separate segregated persons, be treatment from convicted and shall persons;
appropriate to then- status as unconvicted "(b) brought separated juvenile persons from adults Accused shall possible adjudication. speedily as penitentiary system comprise treatment of "3. The shall rehabilitation. and social aim which shall be their reformation essential Juvenile segregated accorded treatment adults and be offenders shall be from added.) (Emphasis age legal appropriate to their status.” *12 It is or is not an recognized must be that what matter of social and individual indignity largely psy- a see Brown v. Multnomah Like chology. "punishment,” Ct., (1977), County Dist. 95, 105-108, P2d 280 Or practice may to be so from the appear purpose imposi- tion, in the or from of the viewpoint prisoner, Moreover, such views perception general public. differ widely among change individuals and over time with social changing expectations about the relations between the sexes.
Here there is no claim that shakedowns by female were guards purposely designed prisoners. to humiliate evidence, There is as one would that different expect, did prisoners the same reactions express being searched by guards the female as did. A plaintiffs psycholo gist at the employed prison estimated that a third perhaps of the prisoners considered the contacts involved in pat- downs female officers As offensive. to the view of such European The formulation of the Universal Declaration is used in Article of3 the Rights Convention for the Protection of Human and Fundamental Freedoms. [European] Rights Convention for the Protection of Human and Fundamental Freedoms, 3, 4,1950, 3,1953, Sept. art signed Nov. 213 U.N.T. entered into force applied by European Rights 222. It was Court of Human in Ireland v. United 18, judgment Kingdom, Legal of Jan. 1978 Series A no. 25 reprinted in 17 Inti (1978)(detention 3). interrogation practices Materials 680 held violative of art Rights In the American Convention on Human the same formulation is followed persons deprived liberty respect the sentence "All of their shall be treated with dignity person.” for the inherent Rights, of the human American Convention on Human 5, 2, 18,1978, § art signed Nov. Idly 36 OAS entered into force Treaty Series OAS Off. Rec. OEA/Ser L/V/EL23doc. rev. 2. adopted by The Standard Minimum Rules the Treatment Prisoners for Congress First United Nations on the Prevention of Crime and the Treatment approved by Offenders in 1955 and the Economic and Social Council in 1957 (Resolution (XXIV))provide separation 663C for the of male and female (Rule 8(a)) minimizing responsibility and for conditions "which tend to lessen the (Rule 60(1).) respect dignity beings.” or the due to their as human Report Congress Contained in on the First United Nations on the Prevention (U.N. Pub., 4), reproduced of Crime and the Treatment of Offenders No.: 1956.IV. Compendium Legislation Compendium of Model Correctional and Standards at (American IV-10, Governments, IV-13 Bar Association Council of State 1972). expression This of the United in turn had in the Nations antecedents (1963). Rubin, League of Nations. SeeS. The Law of Criminal Correction 286 n.7 history Skoler, application of these standards and their is reviewed in Implementation World the United Nations Standard Minimum Rules Prisoners, 10 Jnl Int L & Econ 453 Treatment it society large, common in at we think is within contacts the need for evi- range judicial knowledge without dence. accorded to intimate special significance
distinct from in our criminal ordinary touching reflected law, but unin singles out unconsented otherwise intimate jurious "touching parts” the sexual other ORS sexually as a crime when it is motivated. prosecution *13 163.305(6), "the The referred to 163.415. Court Appeals the final is to be found assumption privacy that bastion excretion,” in and that procreation the area of human then it is any privacy, "[if] a is entitled shred of person agree as to these matters.” 44 Or at 761. We privacy App that still social represents assumptions. this prevailing is this, that "if a prisoner From the court further reasoned inspec an free of visual emergency entitled —absent be—to (which in nude” tion while by prison personnel conceded), to be equally officials "the is entitled prisoner viz., free of the nude inspection, from the tactile equivalent through area anal-genital examination manual no doubt this Again, Id. there should be clothing.” large. in If the recognized society at equation would be prisoner is contacts between equation same denied expected to it is guard, only prisoner can be because dignity his matters personal abandon "outside” sense of Otherwise, such begs question. which bodily privacy, will be inoffensive private parts a manual search one’s of necessity. it is to be a matter only granted when above, traditionally As these concerns mentioned pris of female arise for the treatment providing proper entitle women be That social standards oners. prevailing accepted obvious searched officers is only by female The superin attitudes.22 evidence individual without tes Center Women’s Correctional tendent female prisoners. do not frisk guards tified that male has, fact, principle total whether There been some reconsideration good, prisoners does harm than sometimes more of female institutional isolation (1973); Prisons, Note, L Segregation of 82 Yale J1229 American see Sexual 404-405; 6.13, n.17, this does supra quoted Am L Rev at but in 14 Crim ABA Std restricting of female the direct surveillance not extend to standards 137.350, guards. policy expression is found in ORS An state’s male provides:
It too to assume that the reverse simple situation with respect equally to male obvious. reasons, For ancient continuing perhaps more women will fear or resent intrusive observation touching by male officers than vice versa. The context more impor- tant than formal equivalence. In setting medical and care, hospital women have long accepted ministrations of male physicians and men have those of accepted female and, nurses more recently, female but physicians; there the health of the patient’s itself is the body object and the purpose of the contact is to help. hospital is not an adversary setting of mistrustful on one authority side and compelled subjugation on the other.
Formal equivalence aside, however, we know no reason to conclude that society denies to men in the prison setting a sense of the proprieties it unquestioningly grants women in the same Once this is setting. granted, question becomes whether body searches of male prisoners by female officers is justified by necessity.
HI. The Equal Employment Policy. A necessity to conduct searches of male prisoners by female officers obviously does not arise from anything *14 intrinsic to the themselves, searches nor from a shortage skilled personnel such as might override a patient’s prefer- ence to be handled only by doctors or nurses of the patient’s own sex. If necessity here, can be claimed it arises from the any girl "If charged woman or any place with a crime is sentenced to
confinement, accompanied place by she shall be to such a woman officer who appointed compensated shall be provided in the same manner as in ORS 136.347.” provides: ORS 137.360 likewise "(1) by any Whenever an order has been court made of this state for the any any confinement of nary penal, reformatory eleemosy- female within of the or institutions of this duly any state and it reason thereof becomes the
judge appoint any person to accompany institution, the female to such the judge appoint shall purpose. a woman for that "(2) duty Whenever under the laws of it this state becomes the of the any county convey any any sheriff of eleemosynary penal, reformatory female to or state, person institutions of this the sheriff shall cause such accompanied by place a female attendant of confinement.” policy providing equal occupational opportunities state’s to women. the of these
During pendency proceedings, Legislative the Assem- policy was addressed expressly 1262) (Or 1979, p House Resolution 29 Laws bly. Joint states:
"(1) Department the The Corrections Division of Human of the State shall: Resources "(a) every pro- to make effort to hire and Continue the mote women correctional classifications whithin Division; Corrections
"(b) accom- temporary Continue to make reasonable action policies respect modations in its to affirmative as to all rights so assure involved.” among Prisoners "involved” in this accom- persons are modation. in fact do not insist intervening officers such
their claims override constitutional employment two other They as the have. make rights prisoners no constitutionally is that have prisoners contentions. One touching by guards protected avoiding interest intimate the circuit court acted sex. other opposite an first corrections officials prematurely giving without rules administrative to resolve the opportunity problem why administrative show requiring prisoners inadequate. remedies were above, prisoners we hold that
Although, stated their relation to rights, do retain relevant constitutional It should officers’ deserve additional comment. rights that, objectives of diverging despite be understood rights of pit prisoners law groups, two does rights, The prisoners’ officers. those of corrections against state. Simi- run against like all constitutional rights, opportuni- rights equal employment the officers’ larly, suing are not They are the state. upon ties claims for its own to search asserting right *15 sharing the economic non- sake; their is in interest govern- in an occupation economic opportunities only employer. effectively ment in two recent decisions point This is illustrated officers to as the claims of female corrections involving case, In the first reformatory. in an Iowa men’s signments rights Court of held under a state civil Supreme Iowa of male was respect rights law to use permissible reason for officials not women prison officers in certain and locations. The court assignments reached express exception that conclusion even without an the law for "bona fide occupational qualifications” finding prisoners’ mag to be of constitutional rights nitude. Iowa Serv. v. Iowa Merit Dept. Emp. Dept., Soc. (Iowa 1977). 261 NW2d complaining female officer asserted that her eligibility interest was higher job involved, classification not in performing However, disputed searches and related functions. the Iowa court concluded that the state’s law tied the desired classifi cation to these job functions denied her claim.
The complaining thereupon pursued officer a fed- Act, eral remedy under Title VII of the Civil 42 USC Rights § act, 2000e-2(e), § 2000e et That seq. does make an exception general from its rules dis- against employment crimination when the employer can demonstrate that sex is a "bona fide occupational neces- qualification reasonably sary the normal operation particular of that business or enterprise.” In Gunther Reform., v. Iowa State Men’s supra, the court of appeals reached the conclusion from opposite the Iowa court’s. The federal court found that officials must they show that "could not rear- reasonably range job in a responsibilities way minimize the clash inmates, between privacy interests of the and the nondis- (612 1086), crimination principle of Title VII” F2d at and it also found that in fact female correction officers held the higher classification at the state’s maximum security pris- functions, on without performing the that Gunth- disputed er herself performed higher some of the functions of the classification, and that some male officers were assigned a single function rather than used for all generally jobs within that classification. The court concluded:
"If job these procedures functions and have not under- goals mined reformatory and functions of the at Anam- osa, suggest scheduling there is little reason to privacy rights by avoid the invasion of inmate female *16 give hardship on the officers would rise to undue jus- administration. inconvenience cannot Administrative evidence, tify this we believe the discrimination... . Given properly district failed to demon- court concluded Anamosa reasonably are alternative strate that there no available discriminatory that satis- practices impact less would . . .” fy the the institution. legitimate needs of F2d 612 at 1076.23 case, relief the
In the the claim for before present court of not of correc trial court is that prisoners, shows, employment tions officers. As Gunther the officers’ are do serve OSP rights separate rights a issue. Such disregard reason why protected prisoner a of otherwise I, within "necessary” interests article section under However, the court’s the of that trial meaning section.24 order as does touch on the officers’ employment. written criticism, This their that the court us to second brings first to seek an adminis required should have the prisoners trative remedy. Injunction.
IV. The the for the of correctional Rules administration as to as to treatment of institutions both assignment initially of are personnel responsibility of superintendent of the Corrections and of the Division provides: each ORS 421.016 institution.
"(1) State Superintendent The of Peniten- tiary peniten- be the chief executive officer shall tiary. (1977), Rawlinson, 2720, L Ed In 2d 786 Dothard v. 433 US S Ct guards Supreme occupational qualification for male Court found bona fide security physical security prisons grounds on at the maximum Alabama Jacobs, Integration safety. These cases Sexual and related are reviewed Rawlinson, 10 U Toledo A on v. the Prison’s Guard Force: Few Comments Dothard Comment, Employment: (1979); The Bona
L Rev Sex Discrimination in Prison Rights, Occupational Qualification Privacy 65 Iowa L Rev 428 Fide (1980). and Prisoners’ argue recognition prisoners’ in this case that claims officers opposite might imply police persons sex in the "frisk” that officers could not work, "necessary” ordinary police in a different such contacts can be course of but reason, also, assignment pursue first sense. For this we do not the officers’ error, police officers trial court should have admitted evidence regular repeated suspects in similar to the either sex "frisk” a manner patdown of inmates at issue here. searches
"(4) The superintendents:
"(a) Shall keep safely, according all inmates to law and the rules of the Corrections Division. "(c) May each prescribe government rules for the inmates, subject approval administ
rator.”25 The Administrator of the Corrections Division in fact has promulgated extensive governing rules the conduct searches and inspections in the division’s facilities which incorporate many of the standards mentioned in sources cited above. See OAR 291-41-005 to OAR 291-41-050
Because of this initial agency responsibility, timing and nature of judicial *17 remedies are an aspect of administrative law.26 When a rule is challenged apart from 183.400(1) a order, specific ORS jurisdiction places judicial review in the Court of Appeals, and the petitioner need not first request the agency to on the pass of validity its rule.27 When a rule challenged is in the course of reviewing order, an its validity may be determined by the court that otherwise jurisdiction has to review the order.28 Correction Division orders persons "issued to” sentenced to its custody, however, are excluded from the judicial review 183.315(5). section of the APA. ORS 25 disciplinary procedures Prisoner subject approval are further to governor, 421.180, ORS and compacts supra. the interstate cited cf. 26 aspect judges This led two Dept. to dissent in Iowa Soc. Serv. v. Iowa Merit Emp. Dept., supra, J., (Uhlenhopp, dissenting, joined NW2d at 167-169 J.). by McCormick, 183.400(1): ORS validity any may "The upon petition by rule any be determined a
person Appeals provided Court of in the manner for review of orders in jurisdiction contested cases. validity The court shall have to review the petitioner rule requested agency whether or not the pass upon has first to validity question, the order or a petitioner of the rule in party but not when is a to an validity may contested case in which the of the rule be determined by a court.” 183.400(2): ORS validity any applicable may "The by court, rule also be determined a upon any provided by pursuant review of an order manner law or to ORS upon 183.480 or provided by enforcement of such rule or order in the manner law.”
But "rules” Ad and "orders” within originally ministrative Procedure conceived to Act —terms regulatory private parties describe actions addressed to bene expanded agency later include actions addressed not employees, ficiaries and see ORS 183.310 —do exhaust institu of official state types against persons action A "order,” although search is an order body tions. not an the Administra a search be. Consequently submit Procedure Act not confine relief judicial tive does case, on a rule or an which was not as an attack brought within order, for review of such ac act’s procedures tions, on that precluded intervention was equitable impact score. Nor need all relief be withheld when present or imme assertedly agency unlawful action law” to which diately impending. "protection 421.105(2) actual facing ORS entitles an inmate Specifically "injury” timely protection.29 threatened called a "flexible” setting, the custodial we have what order is remedy by injunction temporary restraining the most of all expansive urgent to obviate resort proper action, the writ of scrutiny of executive habeas judicial 21, 27, P2d Cupp, Penrod/Brown v. 283 Or corpus. authority had to act Accordingly, the circuit court (DSP's deliberately awaiting possible change without policies. chosen intervention, how injunctive price timely
ever, necessity is to within the bounds of remain process to the normal initial long-range leave solutions Circum judicial review. rulemaking administrative *18 injunctive as appropriate, make intervention may stances the case, agency accepts if responsible in this but the as part rise own giving to that intervention principle injunction continued the need policies rules Moreover, may eventually circumstances terminates. come, including the views of in change years possibly prison generations. future 421.105(2): OES penal person imprisonment in the or "The of an inmate sentenced to protection the law and he shall not be institution is under the
correctional injured except as authorized law.” appeal, during pendency of OSP’s We note that has amended the adminis- Corrections Division in fact comply the court’s order. rules cited trative above provides: 291-41-005 now OAR policy Division that the Corrections "It is further the any by person person performed a searches of the will be being except person searched, the same sex as that of the qualified personnel to conduct are utilized
when medical emergency except searches, situations as internal in in this defined rule.” 291-41-020(3) provisions add amended to
OAR was indignity "unnecessary force, embarrassment, to the inspection feasible, de- inmate will be avoided. Whenever may body searches,” used and a new vices instead of (7): paragraph (male/female) "Except emergency,only in an same sex regu- personnel may, part Division of their Corrections (male/female) frequent duties, lar and observeinmates carry open showers, toilets, out in the nude or frisk anal, searches, skin manual examinations of the and/or area(s) clothing supervise genital taking through and/or drug purposes.” [of] samples mine surveillance "emergency An as the "occurrence of situation” is defined requiring im- an unforeseen circumstance immediate 291-41-010(4). plementation of remedial action.” OAR incorporate designed expressly These and are rules against principle "force, to effectuate needless embar indignity” opinion. rassment, However, in this stated appear only response adopted rules to have been order, to assume circuit court’s and there is no basis they were led to would be maintained if the defendants they legally challeng resume the believe that were free to injunction practice. appeal Moreover, has ed from only by pursued argued in this court not been below and officers, were intervenors OSP but also the female who in terms of the court. The rules are not stated the circuit injunc assignment court’s officers, female as the circuit respect injunction in this is, but the be modified tion can Appeals.30 suggested by along the Court of the lines require Appeals be read "to the order could The Court believed that nothing guards opposite not—absent an emer- more than that sex anal-genital gency through clothing prisoner’s area.” 44 a n.4. frisk of a —conduct App Or at 762 *19 consis- modified, the rules can be administered it is When employment supporting the legislative policy tent with supra. For in HJR officers stated female corrections the effect reasons, not have of the rules does adoption these right of the to intervenors the defendants and of depriving their appeal. maintain injunction to vacate may
The defendants move 291-41-005 OAR that OAR ground by adopting on the chal- 291-41-020, regulate supra, they will adequately is intervention judicial so that continued lenged practice, so, do the circuit they If unnecessary and inappropriate. first in the instance. that determination can make court V. Conclusion. and the Court of The court
To summarize: circuit a can raise that correctly recognized Appeals a search correc to constitutionally objection founded touching of that involves of the sex opposite tions officers clothing. The through body intimate areas even sexually I, 13. Under section Constitution article source is and to the when section, is overcome objection that search make the specific that the circumstances extent sex "neces opposite an officer of the performance female corrections male or employment but sary,” "necessity.” blanket provide officers as such does phrased was improperly in this case injunction female correc to which positions directed at the being employ on the This assigned. impinges tions officers can to flexibility of OSP and on the of the officers rights ment prisoners, of the rights rights those accommodate therefore is supra. injunction in HJR contemplated sex opposite that enjoin only guards modified "frisk,” plain other search a "patdown,” not conduct the im in the event area anal-genital except tiffs’ necessitate situation in a particular circumstances mediate it. Divi- the Corrections the injunction,
Subsequent to meet the appear rules which new promulgated son has of these rules the effect Neither injunction. objective only to survive are meant they whether question nor the present us on is before injunction out carry regula- by these intend to abide If the defendants record. court vacate therefore move the circuit tions and any injunction, there can whether court determine judicial why order continuation of this or another reason necessary.
Affirmed as modified. *20 specially concurring. J.,
TONGUE, majority by I concur in the the result reached subjected prisoners it that male cannot be insofar as to holds genital by involving touching guards of female searches except emergencies. however, not, I do areas anal majority opinion agree grounds the on the which wrong, only I to be but also based, not because them believe wholly they upon theory are a different from based because theory appealed to the on the case both tried and which was Appeals. Court theory properly 1. this a This court cannot case on decide wholly theory this case on which was different from appealed. tried both theory prison-
This tried that male case was on the "right privacy” protection ers a have which entitled touching against by guards involving searches female genital by opinion and anal areas. The trial written provided injunction court which the basis for was "right expressly privacy.” upon prisoner’s based constitutional appeal by parties The briefs question. Appeals of that Court of confined to a debate were holding by majority opinion by that affirmed the court right the trial court that have a constitutional by petition privacy is violated searches. The such although challenging that hold- review, correctness of ing, suggest any decision. not basis for did alternative argued 1980, in this was
On June
case
solely
arguments
Again,
to the
directed
court.
were
question
such a constitutional
whether
have
right
privacy.
one
31,1980, this case was
As of December
"assigned
which had been
but unwritten” cases
writing
assigned
of a
a
for the
to member
the court
yet
opinion
opinion,
proposed
proposed
had
for which no
but
However,
14,1981,
January
been written.1
letter dated
attorneys
parties,
supplemental
the court
for the
from
requested
question
prisoners,
briefs were
on the
whether
a
a
have
having
"right
privacy,”
instead of
constitutional
treatment with
right
protection against
constitutional
I,
§
under Article
13 of the
"unnecessary
rigor”
against
Constitution
as a
such
protection
basis
Thus,
suggested
searches.
letter
this court
from the
for decision of this case different
parties
basis
either the
basis
which the case had been decided
upon
or the
Appeals.
trial court
Court of
it will
It has been held
this court that
repeatedly by
different
wholly
appeal
theory
not decide a case on
on a
which,
As stated in
than the
on
the case was tried.
theory
284, 297,
Guardian,
Hoevet,
200 P2d
Edwards,
v.
185 Or
(1949):
practice
ap-
"A familiar rule of
restricts the
appellate
He can
theory
pursued
he
in the trial court.
pellant
present
in this
issues
he did not
court raise
Davidson, 168 Or.
in the circuit court: Johnson v.
rely upon
179;
Chenoweth,
P.2d
Harlow v.
158 Or.
937;
Corp., 139
Acceptance
P.2d
Pelton v. General Motors
*21
198,
128,
unnecessary to
P.2d
deem it
Or.
9 P.2d
7
263. We
from our re-
page with additional citations
burden this
* *
just
universally applied:
rule
stated is
ports; the
Mar-
in
v. Johnson and
As further
stated
Stotts
(1951):
shall,
403, 420,
P2d
More recent cases Johnston, Or Nordling this court include v. applied (1955); v. Fields 994, 287 Chaney 283 P2d P2d 420 (1971), and Co., 606, 613, P2d 824 258 Or Chevrolet 666, 673-74, 542 Const., 273 Or Terry Morgan Judson v. P2d 1010 383, 407, Quinn, P2d concurring opinion in State v. 290 Or 1See court, comparative (1981), subject delays appeals with in to this on the
statistics. is basic to our If adversary process, that the fact respected, is to be jurisprudence, system review, than a court is a court of rather this court now a result different appeal, properly justify direct cannot free the parties to to the would leave contrary hold because demand, that if not for review to propose, on petitions the Court of Appeals reverse either the trial court or court from different reasons theories upon completely based appealed was tried and theory which the case both upon Appeals. to the Court of reasons, majority
For these I cannot concur theory this case a this case because it decides on opinion was theory different from the on which this case completely In addi- Appeals. tried and to the Court of appealed both tion, theory I do on which the agree with the new decides this case for additional reasons. majority right prisoners protected 2. The constitutional from unnecessary aground pro- "treatment with rigor” sex. "pat-down” by guards opposite hibit searches scholarly indeed by the a opinion majority I not, however, in its agree majority do opinion. that a under holding right have constitutional prisoners I, § Article of the Oregon protection Constitution be, such searches. It for reasons stated against may that to hold have a constitutional majority, a "right privacy” adopt concept subject danger embracing every- "[a] criticism that concept is a and that thing concept danger conveying nothing,” in clarity [such] the law should not a "pay price as stated cogency,” majority. me, however,
To con- prisoner’s concept to be treatment with right against stitutional protected criticism, rigor” is to much same "unnecessary subject to what consider when extended particularly I am concerned that "unnecessary” to be searches. also *22 to object upon right a constitutional prisoners confer from pris- Box which may open searches a Pandora’s such otherwise, deluge the courts may, habeas or by corpus oners the rules many of litigation based claims that upon institu- penal operation practices customary rigorous.” are "unnecessarily tions If a constitutional to choose between required right object and a constitutional "right privacy” I would "unnecessarily rigorous,” "treatment” which is by stated the majority choose the former reasons the Court of Appeals, despite conceptual opinion Indeed, that: majority states problems. prison may
"It well be that the interest asserted brought one of the kinds of ers in this case can be within by unexpressed penumbras to be 'privacy’ protected said See Gunther v. Iowa State the United States Constitution. (8th 1980) Reform., 612 F 2d Cir cert. den. Men’s (1980).” 966, 100 2942, 64 (p. S Ct L Ed 2d 825 618- 446 US 19.) however, If, some other basis must be found for case, this case can be it is view that my decision of a con- necessity finding decided without properly thus rights, "engraving stitutional basis for prisoners’ legislature. the reach of the beyond them stone” all, has a basis in First of right privacy law, litigation. in civil subject protection tort ordinary retain all Oregon ORS 137.275 By reason of. maintain civil actions including right rights, civil suits, law.” "except provided by as otherwise
Furthermore, whether question and aside from enforceable "right have such a privacy,” suits, to ORS calls attention majority civil actions IV(e) IV(5) 421.284, 421.245, Art. Art. and ORS inmates "shall be of correctional institutions require 618). The and humane manner.” (p. reasonable treated Federal Standards for Corrections also refers to majority provide, Justice which by the Department published of female pris- "[a]ll among things, supervision other 621). (p. must be female employees.” oners say: majority goes on to entitle women to be prevailing "That social standards accepted as obvious only by female officers searched superintend- individual attitudes. without evidence of Center testified Women’s Correctional ent of 624). (p. prisoners.” female guards that male do not frisk and that: *23 aside, however, equivalence
"Formal we know no society prison reason to conclude that denies men in the to setting a of the it proprieties imquestioningly sense that 625). grants setting.” (p. women the same
I in complete am with these statements. agreement Indeed, time at the of oral counsel argument representing the women who make guards demand to right "pat down” of the genitals searches anal areas male prisoners that if prisoners right conceded male have no to object to such searches it follow by guards, female would that object female would no prisoners right have to to such guards. searches male
My
however,
point,
is
these "standards” pro
vide an
ample
proper basis
that to
holding
require
male
to
prisoners
be
to
subjected
"pat down” searches of
genital
and anal
areas
female
guards,
except
emergencies,
is contrary
provisions
of ORS 421.245
421.484,
which
"shall
requires
prisoners
treated in a reasonable and humane manner.”
Gunther
Cf.
1980)
v. Iowa State Men’s
(8th
Reform.,
F
2d 1079
Cir
cert. den.
(1980),
TANZER, J., dissenting.
I with disagree majority as a of degree matter rather theory. than of I firm believe as a matter of convic- tion that the courts should management intervene into the of prisons with only great restraint for reasons of only sufficient magnitude I action. do justify extraordinary not suggest that rights constitutional should be protected less vigor Rather, than the rights of others. it is my belief profound regard that courts should not federal or the Oregon constitutions as licenses imposition judicially preferred practices upon system. is controlling fact of this case is that there no
challenge to the authority subject plaintiffs of the state to only authority searches. The is to the challenge authority only challenge searches. The performed persons of either have the
state to searches sex. plaintiffs’ reason, I
For that see no violation privacy. They expectation of concede that their reasonable privacy may upon. prisoners, plaintiffs’ be intruded As exposure privacy expectation is not lessened and their person enlarged according to the sex searches searching. "unnecessary agree
I that the constitutional term physi- penal rigor” applies to action abuses *24 exhausting cally emotionally. torture, water, Bread and display, inadequate public labor, shelter and emotional examples of the kinds harassment come to mind as "unnecessary physical or emotional torment which rigor” prevent. searches clause was intended to Pat-down anywhere by persons close to of either sex does not come subjection rigor, although magnitude examples of those activity fondling or sexual or homosexual to heterosexual by guards "unnecessary I the the courts to en- would be. see no evidence that rigor” was intended to clause authorize among delicacy courtesy adults standards force for- Standards in the name the constitution. by organizations such as the and institutions mulated are and the United Nations American Bar Association worthy legislature respectful or the from the attention they branch, con- but are no substitute executive judicial they provide do not a mandate stitution intervention. permissible searches
The conduct of otherwise civility persons fundamental of either sex not a breach of "unnecessary constitutionally rigor.” forbidden as which is injunction reasons, denied. have been For these should opinion. joins dissenting Peterson, J., in this