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California Family Visiting Appeal Denied

The California Court of Appeal affirmed the denial of a state prisoner's quest for injunctive and declaratory relief that would have invalidated the 1996 amendments to the Department of Corrections' (CDC) family [overnight] visiting rules excluding him from participation. The case had received much publicity in prisoner newsletters and publications.
Bernard Gordon, sentenced to life without parole (LWOP) in 1987, was denied family visiting by virtue of the 1996 amendments to prison regulation Title 15, § 3177(b)(2) [formerly § 3174(e)], which expressly excluded LWOPs. He had attacked the regulation as being procedurally defective under the Administrative Procedures Act (APA) (Government Code
§§ 11340 et seq.) and countered CDC's argument that the regulation was
reasonably necessary.

In an unpublished opinion, the appellate court affirmed the San Francisco Superior Court's ruling that the APA claim was moot because CDC had reenacted the challenged regulation in 2003, which had the effect of curing any prior defects in the earlier enactment. As to the second claim, the court concluded that CDC's determination was not arbitrary and capricious" because it satisfied Government Code §§ 11340(c) and 11350(b)(1)'s requirement for substantial evidence to support exclusion of certain prisoners from the family visiting program on the grounds of reasonable necessity." See: Gordon v. California Department Corrections, California Court of Appeals, First Appellate District, Case No. A103737, 10/28/04; San Francisco County Superior Court, Case No. 322862.

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Related legal case

Gordon v. Calfornia Department of Corrections