In re Kakowski CA4/1 ( 2024 )

Filed 2/28/24 In re Kakowski CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re BRIAN KAKOWSKI D080001
on (San Diego County
Super. Ct. No. HSC11878)
Habeas Corpus.
Original proceeding on a petition for writ of habeas corpus. Order to
show cause discharged and petition dismissed.
Brian Kakowski, in pro. per.; and Gerald J. Miller, under appointment
by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Heather M. Heckler, and Rachael Anne
Campbell, Deputy Attorneys General, for Respondent.
INTRODUCTION
Brian Kakowski, a prisoner in the custody of the California
Department of Corrections and Rehabilitation (Department), petitions this
court for writ of habeas corpus. He raises an equal protection challenge to a
Department policy permitting transgender female inmates, but not cisgender
male inmates, to possess certain personal hygiene items. While Kakowski’s
petition was pending, the Department changed its policy so as to make the
subject hygiene items available to both cisgender male inmates and
transgender female inmates. We conclude this development has made
Kakowski’s petition for writ of habeas corpus moot. Accordingly, the order to
show cause is discharged and the petition dismissed.
BACKGROUND
In February 2022, Kakowski filed with this court a petition for writ of
habeas corpus challenging a Department policy that prohibited cisgender
inmates housed at male institutions from accessing certain hygiene
products—specifically, tweezers, emery boards, shower caps, and facial
scrub—while allowing such access to transgender inmates and inmates
having symptoms of gender dysphoria housed at male institutions. He
asserted the policy violated his rights to equal protection. (Cal. Const., art. I,
§ 7, subd. (a); U.S. Const., 14th Amend.)
The difference in inmate access to the specified hygiene products was
the result of two sets of personal property schedules incorporated by
reference in title 15, section 3190 of the California Code of Regulations. (See
Cal. Code Regs., tit. 15, § 3190, subds. (b), (e).) Under the first set of
schedules, the Authorized Personal Property Schedules (APPS), an inmate’s
right to possess personal property depended on the type of institution (male
or female) and security level in which the inmate was housed. (See Cal. Code
Regs., tit. 15, § 3190, subd. (b).) In 2017, the Department added a second
schedule, the newly created Transgender Inmates Authorized Personal
Property Schedule (TIAPPS), which was “a separate list of allowable personal
property afforded to transgender inmates and inmates with symptoms of
gender dysphoria as identified and documented . . . by medical or mental
health personnel within a CDCR institution.” (See Cal. Code Regs., tit. 15,
§ 3190, former subd. (d), now subd. (e).)
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The TIAPPS listed emery boards, facial cleanser, shower caps, and
tweezers as personal property items available to transgender inmates and
inmates with symptoms of gender dysphoria who were housed in general
population levels I, II, III, and IV of male institutions. However, these
toiletries were not listed in the APPS. By including these items in the
TIAPPS but not in the APPS, the Department allowed transgender inmates
and inmates with symptoms of gender dysphoria to possess them while
denying them to cisgender male inmates housed in the same institutions at
the same security levels. This gender-identity-based difference in access to
the specified hygiene items was the disparate treatment Kakowski
challenged as an equal protection violation.
After requesting and receiving an informal response to Kakowski’s
petition from the Attorney General on behalf of the Department, we issued an
order summarily denying Kakowski’s petition. Kakowski then successfully
sought review in the California Supreme Court. In August 2022, the matter
was transferred back to this court with directions to vacate the summary
denial and issue an order directing the Department to show cause why relief
should not be granted on the ground that the Department’s policy violated
the equal protection clauses of the state and federal Constitutions. We
vacated our summary denial, issued the order to show cause as directed, and
arranged for Kakowski to be represented by appointed counsel. In January
2023, Kakowski, now represented by appointed counsel, filed a supplemental
writ petition.1 In May, the Department filed its return, and in June,
Kakowski filed a traverse.
1 This was actually the second supplemental petition filed on behalf of
Kakowski. The first supplemental petition was prepared and submitted in
November 2022 by an attorney whose appointment Kakowski subsequently
challenged. We construed Kakowski’s challenge as a motion pursuant to
3
While Kakowski’s petition was pending, however, effective November
2023, the Department revised the APPS. (See Cal. Code Regs., tit. 15, § 3190,
subd. (b) [incorporating schedules with revision date of “11/23”]; California
Department of Corrections and Rehabilitation, Authorized Personal Property
Schedule <https://www.cdcr.ca.gov/regulations/wp-
content/uploads/sites/171/2023/10/Authorized-Personal-Property-
Schedule.pdf> [as of Feb. 27, 2024] archived at <https://perma.cc/LT6N-
US8R>.) The newly amended APPS authorizes inmates housed in general
population levels I, II, III, and IV of male institutions to possess, among other
things, emery boards, facial cleanser, shower caps, and tweezers. Thus, it is
no longer Department policy to deny cisgender inmates access to these items.
In its notice of regulatory change, the Department states that it revised the
APPS “to ensure gender equality within the [D]epartment’s inmate
population.” (Initial Statement of Reasons (Dec. 15, 2023), p. 4,
<https://www.cdcr.ca.gov/regulations/wp-
content/uploads/sites/171/2023/12/NCR_23-15_Restriced_Housing_Units.pdf>
[as of Feb. 27, 2024] archived at <https://perma.cc/8HBC-UXH7>.)
In light of this development, we issued an order directing the parties to
submit supplemental briefs addressing whether Kakowski’s petition for writ
of habeas corpus had been rendered moot by the Department’s revisions to
the APPS. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th
455, 479–480 [appellate court may examine mootness on its own motion].) In
response, the Attorney General agreed that it had been rendered moot.
Kakowski, however, asserted that it had not. He attached to his
People v. Marsden (1970) 2 Cal.3d 118, granted the Marsden motion, and
struck the original supplemental petition. A new attorney was then
appointed to represent Kakowski, and the operative supplemental petition
was filed in January 2023.
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supplemental brief a copy of a document that he described as a January 2024
“Canteen Price List” for the Robert J. Donovan Correctional Facility, where
he is currently housed. The document, which was not authenticated, set
forth prices for apricot scrub, emery boards, and tweezers; next to these items
was a notation stating “TRANSGENDER CARD REQUIRED.” Kakowski
argued his petition was not moot because, based on this document, “the policy
of equal access to the subject items has apparently not been fully
implemented.” (Italics added.)
DISCUSSION
Ordinarily, we do not review questions that have become moot. “As a
general rule, an appellate court only decides actual controversies. It is not
the function of the appellate court to render opinions ‘upon moot questions or
abstract propositions, or . . . declare principles or rules of law which cannot
affect the matter in issue in the case before it.’” (People v. Rish (2008) 163
Cal.App.4th 1370, 1380, some internal quotation marks omitted.) “ ‘Thus,
appellate courts as a rule will not render opinions on moot questions[.]’ ”
(In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231.)
We conclude that Kakowski’s petition for writ of habeas corpus has
been rendered moot by the Department’s November 2023 revision of the
APPS. “A case becomes moot when events ‘render[ ] it impossible for [a]
court, if it should decide the case in favor of plaintiff, to grant him any
effect[ive] relief.’ ” (In re D.P. (2023) 14 Cal.5th 266, 276, some internal
quotation marks omitted.) That is what has occurred here. Kakowski’s
petition challenged the Department’s statewide policy of differential access to
the subject hygiene items. In his supplemental petition, he identified title 15,
section 3190 of the California Code of Regulations, to the extent it
incorporated the APPS and TIAPPS, as the assertedly discriminatory policy
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and asked us to “invalidate the subject policy and regulations”; in his
traverse, he reiterated his attack and requested the same relief. Our order to
show cause required the Department to defend its policy against Kakowski’s
claim that it violated equal protection. It has now revised that policy, and it
has expressly done so to ensure gender equality in its inmate population. To
declare the Department’s now-defunct policy invalid on equal protection
grounds would be a meaningless gesture.
To the extent Kakowski asserts, based on the January 2024 “Canteen
Price List,” that the change in Department policy has “apparently” not yet
been fully implemented, we disagree he has identified a circumstance
sufficient to render his petition not moot. The relevant question for purposes
of determining mootness is whether a favorable decision on the merits of
Kakowski’s petition would grant effective relief. (In re D.P., supra,
14 Cal.5th at p. 276.) “For relief to be ‘effective,’ two requirements must be
met. First, the plaintiff must complain of an ongoing harm. Second, the
harm must be redressable or capable of being rectified by the outcome the
plaintiff seeks.” (Ibid.) The circumstance Kakowski identifies fails to satisfy
these requirements. For one thing, his assertion of an “apparent” failure to
implement the Department’s recent change in policy falls short of
establishing an actual, as opposed to a possible, ongoing harm. Courts do not
redress potential violations of law. (Cf. ibid. [“A court is tasked with the duty
‘ “to decide actual controversies by a judgment which can be carried into
effect, and not to give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the matter in issue
in the case before it.” ’ ” (Italics added)].) For another, Kakowski’s petition
sought an order declaring the Department’s policy to be invalid; he did not
seek an order compelling the Department to comply with an assertedly valid
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policy. For this reason, the harm Kakowski identifies as a basis for avoiding
mootness is not one that is “capable of being rectified by the outcome [he]
seeks.” (Ibid.)
We therefore conclude that Kakowski’s petition has been rendered moot
by the Department’s November 2023 revisions of the APPS. “The proper
disposition of a moot case is dismissal.” (In re Miranda (2011) 191
Cal.App.4th 757, 762.)
DISPOSITION
The order to show cause is discharged, and the petition for writ of
habeas corpus is dismissed as moot.
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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