Opinion
No. 552 M.D. 2012
08-01-2013
Raymond J. Smolsky, Petitioner v. The Department of Corrections, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Before the Court are preliminary objections in the nature of a demurrer filed by the Department of Corrections (Department) to Raymond J. Smolsky's pro se petition for review in the nature of mandamus. Concluding that Smolsky has failed to establish a clear right to relief, we sustain the Department's preliminary objections.
On October 22, 2012, the Department filed a motion to revoke Smolsky's in forma pauperis status pursuant to Section 6602(f) of the Prison Litigation Reform Act, 42 Pa. C.S. §6602(f). The motion was granted on January 9, 2013.
Smolsky is currently serving a prison term of 22.5 to 45 years at the State Correctional Institution at Mahanoy (SCI-Mahanoy) following his conviction for corruption of minors, involuntary deviate sexual intercourse and rape. The Department requires Smolsky to participate in a sex offender treatment program (Program), which requires, inter alia, that participants admit to the crimes for which they were convicted.
In his petition for review, Smolsky contends that by forcing him to admit that he committed crimes for which he is innocent, the Department is violating his constitutional right to freedom of religion because his Roman Catholic faith prohibits lying. Smolsky further contends that the Program's admission requirement violates the Religious Freedom Protection Act because the Department is compelling him to violate a tenet of his religion. Smolsky requests that this Court issue an order releasing him from the Program unless the Department allows him to participate as a "non-admitter."
The following are some of the biblical verses Smolsky quotes to support his claim: "[L]iars[] shall have their part in the lake which burneth with fire and brimstone." Revelations 21:8; "Lord, who shall abide in thy tabernacle? ... He that walketh uprightly, and worketh righteousness, and speaketh the truth in his heart." Psalms 15:1-2; and "Though knowest the commandments ... Do not bear false witness...." Luke 18:20.
Act of December 9, 2002, P.L. 1701, 71 P.S. §§2401-2407.
The Department counters that Smolsky's petition for review, which sounds in mandamus, does not establish a clear legal right to relief. We agree.
The Department also asserts that, to the extent Smolsky's petition can be read to raise a claim under 42 U.S.C. §1983 or the Equal Protection Clause, this Court should reject his claims. However, Smolsky concedes that he is not bringing either of those claims. See Petitioner's Answer to Preliminary Objections at 11-12. The Department also argues that Smolsky may not challenge its authority to require his participation in the Program. Again, Smolsky concedes that he is not challenging the Department's authority to place him in the Program, only its authority to set unconstitutional requirements as a condition of the program.
We note that, to the extent Smolsky's petition seeks injunctive relief, he still bears the burden of establishing a clear right to relief. Harding v. Stickman, 823 A.2d 1110, 1111 (Pa. Cmwlth. 2003).
A writ of mandamus compels the performance of a ministerial duty by a government official when (1) the petitioner demonstrates a clear legal right to performance, (2) the official owes the petitioner a duty, and (3) there are no other adequate remedies at law. Wilson v. Pennsylvania Board of Probation and Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). "Mandamus is not available to establish legal rights, but is appropriate only to enforce rights that have been established." Id. This Court will not direct an agency to exercise its discretion or reverse an action made within its discretion. Dodgson v. Department of Corrections, 922 A.2d 1023, 1027 (Pa. Cmwlth. 2007).
"Preliminary objections will be sustained only where it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief." Wilson, 942 A.2d at 272. We must accept all well-pleaded material facts and inferences therefrom. Dodgson, 922 A.2d at 1028. "We need not accept as true conclusions of law, unwarranted inferences, argumentative allegations, or expressions of opinion." Id.
The Department argues that Smolsky has failed to establish a clear, legal right to relief because the Department has a legitimate penological interest in requiring that sex offenders participate in the Program and take responsibility for their crimes. The Program is a penological matter committed to the discretion of the Department. Although the Department concedes that the Program infringes upon Smolsky's constitutional rights, such as the right to practice religion or the right to keep silent, it does not matter. All incarceration restricts a prisoner's individual rights.
Smolsky counters that he has demonstrated a clear right to relief. He contends that a plain reading of the United States Constitution establishes the right of every citizen to relief from government action that infringes on the right to practice one's religion. Similarly, Smolsky argues, albeit inferentially, that the Religious Freedom Protection Act establishes a cause of action for individuals who have had their religious liberties restricted by a government agency. Smolsky contends that all he needs to prove under this Act is that the Department has compelled him to violate a tenet of his religion. Therefore, Smolsky asserts that the Department's preliminary objections should be denied.
Smolsky's argument is also grounded in the Pennsylvania Constitution, but because our state constitution is not broader than its federal counterpart, we need only consider federal precedent to resolve the matter. Meggett v. Department of Corrections, 892 A.2d 872, 879 (Pa. Cmwlth. 2006). The Pennsylvania Constitution reads, in pertinent part, that
[a]ll men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.Pa. Const. art. I, §3.
Smolsky does not expressly rely upon the Religious Freedom Protection Act, but he does use language from the Act and cites to cases decided under the Act.
The Free Exercise Clause of the First Amendment of the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" U.S. Const. amend. I. However, it is well established that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Pell v. Procunier, 417 U.S. 817, 822 (1974) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948), overruled on other grounds by McCleskey v. Zant, 499 U.S. 467 (1991)). An inmate "retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell, 417 U.S. at 822
The Fourteenth Amendment made the Bill of Rights applicable to the states as well as Congress. Cantwell v. Connecticut, 310 U.S. 296 (1940). --------
This Court has recognized four factors established by the U.S. Supreme Court for determining when prison regulations impermissibly restrict constitutional rights. Courts must evaluate:
(1) whether there is a "valid, rational connection" between the prison regulation and the legitimate, neutral, governmental interest advanced to justify the regulation; (2) whether the inmate has alternative means of exercising the right at issue; (3) the burden that the accommodation would impose on prison resources; and (4) whether any ready alternatives to the regulation exist that would fully accommodate the inmate's rights at a de minimis cost to valid penological objectives.Mobley v. Coleman, 65 A.3d 1048, 1052 n. 5 (Pa. Cmwlth. 2013) (quoting Turner v. Safley, 482 U.S. 78, 89-90 (1987)). The prisoner bears the burden of showing that the regulations are unconstitutional. Id. at 1052. Furthermore, "courts must exercise restraint in supervising the minutiae of prison life" because "[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." McKune v. Lile, 536 U.S. 24, 37 (2002) (quoting Turner v. Safley, 482 U.S. 78, 84-85 (1987)).
Here, Smolsky argues that there are alternatives to making Program participants admit to their crimes, but he has not shown that such alternatives meet the same penological, rehabilitative goals. Furthermore, Smolsky has failed to show that there is no reasonable government interest behind the Department's Program requirement; that there are no other means for him to exercise his rights, and that his suggested alternative methods would not unreasonably burden the Department. In short, Smolsky has failed to aver sufficient facts to make a prima facie showing that the Program requirement is unconstitutional on its face. Accordingly, Smolsky has not established a clear right to relief under the First Amendment's Free Exercise Clause.
Smolsky also suggests that he is entitled to relief under Pennsylvania's Religious Freedom Protection Act. The Act was enacted in 2002 to enlarge constitutional protections against government intrusion on individual religious beliefs. See Brown v. City of Pittsburgh, 586 F.3d 263, 285 (3d Cir. 2009). Section 4 of the Act states that "an agency shall not substantially burden a person's free exercise of religion." 71 P.S. §2404. An agency "substantially burdens" the free exercise of religion when it does any of the following:
1. Significantly constrains or inhibits conduct or expression mandated by a person's sincerely held religious beliefs.Section 3 of the Act, 71 P.S. §2403 (emphasis added). However, with regard to inmate claims, Section 5(g) of the Act states that
2. Significantly curtails a person's ability to express adherence to the person's religious faith.
3. Denies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion.
4. Compels conduct or expression which violates a specific tenet of a person's religious faith.
an agency shall be deemed not to have violated the provisions of this act if a rule, policy, action, omission or regulation of a correctional facility or its correctional employees is reasonably related to legitimate penological interests, including the
deterrence of crime, the prudent use of institutional resources, the rehabilitation of prisoners or institutional security.71 P.S. §2405(g) (emphasis added).
Here, Smolsky focuses his argument on the fact that honesty is a tenet of his religion. However, he has failed to show that the contested Program requirement is not reasonably related to the Department's legitimate penological interest in the rehabilitation of prisoners. In McKune, 536 U.S. 24, the United States Supreme Court considered the constitutionality of a similar mandatory prison rehabilitation program for sex offenders that also required participants to admit to their convicted offenses. Though the issue before the Court was whether that requirement violated the Fifth Amendment, a plurality of the Court lauded the rehabilitative effect of requiring inmates to admit to their crimes. The Court stated that
[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.... Therapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism.... An important component of those rehabilitation programs requires participants to confront their past and accept responsibility for their misconduct. "Denial is generally regarded as a main impediment to successful therapy," and "[t]herapists depend on offenders' truthful description of events leading to past offenses in order to determine which behaviors need to be targeted in therapy." ... Research indicates that offenders who deny all allegations of sexual abuse are three times more likely to fail in treatment than those who admit even partial complicity.Id. at 33 (citations omitted). Thus, Smolsky bears a difficult burden in proving that the Department's Program requirement is not related to a legitimate penological interest. However, Smolsky did not even attempt to meet this burden. Therefore, he has failed to establish a clear right to relief under the Religious Freedom Protection Act.
For the foregoing reasons, we sustain the Department's preliminary objections and dismiss Smolsky's petition for review.
/s/_________
MARY HANNAH LEAVITT, Judge Senior Judge Friedman concurs in the result only. ORDER
NOW, this 1st day of August, 2013, upon consideration of the Department of Corrections' Preliminary Objections in the above-captioned matter, it is hereby ORDERED that the Preliminary Objections are SUSTAINED and the Petition for Review is DISMISSED.
/s/_________
MARY HANNAH LEAVITT, Judge