In the February, 1995, issue of PLN we reported In Re Yakle , the habeas corpus petition granted by a California state Superior Court which held that Section 3100(a) of 15 California Code of Regulations, required the California DOC (CDC) to establish and maintain a hobbycraft program at the Susanville Correctional Center. The original ruling was an unpublished order and it has been affirmed in an unpublished ruling. While it cannot be cited as binding precedent California prisoners will find the decision useful.

Lassen County Superior Court Judge J. Harvey issued a writ of habeas corpus on August 16, 1994, which ordered the California Department of Corrections (CDC) to establish a hobby program and store materials at the California Correctional Center (CCC) at Susanville. Steve Yakle, a CCC prisoner, was transferred to CCC from Folsom, where he participated in a hobby program. Upon arrival at CCC he was informed that the prison had no hobby program nor would it store the hobby materials he had purchased at Folsom. Yakle filed a writ of habeas corpus contending that California prison rules required CCC to have a hobby craft program. Judge Harvey agreed.

The CDC appealed Judge Harvey's ruling contending that the Rule 3100 is a permissive rule and that it conflicts with other penal code regulations. The appeals court rejected these arguments. "CDC reasons that section 2813 provides discretion to the director of corrections to implement a handicraft program and, if construed as mandatory, section 3100(a) conflicts with section 2813 because it eliminates the director's discretion. There is no conflict between the director's regulation and the statute."

"The director must exercise the discretion conferred by Penal Code section 2813 in some manner. One manner of exercising such discretion is by promulgation of a regulation. Having used that means to exercise discretion, the director and CDC are constrained to follow the regulation until the regulation is amended or repealed.... This does not take away the discretion conferred by Penal Code section 2813, it merely occasions a procedural requirement for the exercise of that discretion."

The appeals court rejected the CDC's contention that the rule in question was permissive in nature. It also rejected the claim that the CDC did not intend the regulation to be mandatory in nature because the representation by counsel does not constitute, as the CDC asserted, "legislative history." While in some cases an administrative agency's interpretation of its own rules will be given great weight, ultimately "the question is one of law, i.e., for the judiciary.... The representation of counsel is not evidence of a contemporaneous administrative construction of the regulation. Even a declaration from CDC employees involved in drafting the regulation concerning the intent with which the regulation was promulgated would be entitled to little, if any weight.... The potential for abuse and the self interest inherent in such an assertion does not justify reliance by the court."

"The assertion of CDC that Section 3100(a) is permissive rather than mandatory is not backed by a credible legal argument that the language of the regulation is ambiguous. Hence, CDC's assertion has no weight and affords no basis to depart from the construction of section 3100(a) announced by the trial court." The court noted there was no argument either before it or the lower court that the CDC lacked funds to implement the regulation requiring a hobby shop at Susanville. If that were the case, the CDC would have to either apply for more funds or change the regulation. The lower court ruling was affirmed. See: In Re Yakle , Case No. C019497, Ca. Ct. Appeals. 3rd App. Dst. May 5, 1995. Readers will note this is an unpublished ruling.

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