In re Rhoades

Filed 3/22/17 Certified for publication 4/12/17 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re GREGORY L. RHOADES D070488
on (Imperial County
Super. Ct. No. EHC01917)
Habeas Corpus.
APPEAL from a judgment of the Superior Court of Imperial County, Raymond A.
Cota, Judge. Reversed and remanded with directions.
Kamala D. Harris and Xavier Becerra, Attorneys General, Phillip J. Lindsay,
Assistant Attorney General, Julie Malone and Gregory J. Marcot, Deputy Attorneys
General, for Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Petitioner and
Respondent.
In this appeal, officials of the California Department of Corrections and
Rehabilitation (the Department) challenge the trial court's order granting a petition for
writ of habeas corpus filed by Gregory L. Rhoades, who is a Native American prisoner
incarcerated at Calipatria State Prison (Calipatria). In granting Rhoades's petition, the
trial court concluded that the prohibition on the use of straight tobacco during prisoners'
Native American religious ceremonies violated the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA) (42 U.S.C. § 2000cc et seq.) and it
ordered the California Department of Corrections to "formulate and implement policies
permitting and reasonably regulating the possession and use of straight tobacco" during
those ceremonies.
We conclude that the trial court improperly granted relief in favor of Rhoades
without holding an evidentiary hearing on disputed factual issues. We therefore reverse
the judgment, and we remand this matter with directions that the trial court hold an
evidentiary hearing. On the RLUIPA claim, the trial court shall hold an evidentiary
hearing on the disputed factual issue of whether Rhoades's religious exercise is
substantially burdened by the policy prohibiting the use of straight tobacco in religious
ceremonies. If Rhoades meets his burden of proof on that issue, the trial court shall then
consider the factual issue of whether the policy against the use of straight tobacco
constitutes the least restrictive means of furthering a compelling governmental interest.
In the event the trial court does not grant relief under RLUIPA on remand, it should
consider whether any of Rhoades's other claims provide a basis for relief.
2
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Rhoades's First Habeas Corpus Petition
Rhoades is a prisoner at Calipatria and a member of a Native American tribe. On
February 4, 2015, Rhoades filed a petition for writ of habeas corpus in Imperial County
Superior Court alleging that prison officials (Respondents)1 had denied Native American
prisoners the right to practice their religion freely and traditionally by banning the use of
straight tobacco during Native American religious ceremonies. Rhoades alleged (1) an
infringement of his right to freedom of religion under the First and Fourteenth
Amendments to the United States Constitution; (2) a failure to comply with Penal Code
section 5030.1, subdivision (a);2 and (3) a failure to comply with RLUIPA (42 U.S.C.
§ 2000cc et seq.). The superior court denied the petition on March 11, 2015, without
issuing an order to show cause.
1 Specifically, Rhoades named as Respondents the following individuals: (1) W. L.
Montgomery, alleged to be the warden at Calipatria; (2) Claudia Macias, alleged to be the
community resources manager at Calipatria; (3) Charles Richey, alleged to be a chaplain
and the American Indian spiritual help designee at Calipatria; and (4) M. D. Stainer,
alleged to be the director of the California Department of Corrections and Rehabilitation.
2 Penal Code section 5030.1, subdivision (a) provides: "The possession or use of
tobacco products by inmates under the jurisdiction of the Department of Corrections is
prohibited. The Director of Corrections shall adopt regulations to implement this
prohibition, which shall include an exemption for departmentally approved religious
ceremonies." Rhoades alleges that the Department has not complied with the statutory
requirement that it adopt an exemption for departmentally approved religious ceremonies
with respect to the use of tobacco during Native American religious practice.
3
B. Rhoades's Instant Habeas Corpus Petition
Rhoades then filed a new petition for writ of habeas corpus in this court on
April 29, 2015 (the Petition). The Petition, which was verified, deleted some of the
allegations in the previous petition and made additional allegations, some of which were
directed at clarifying misunderstandings apparent in the superior court's statements in the
order denying the first petition. The Petition named the same Respondents. As before,
the Petition alleged (1) an infringement of Rhoades's right to freedom of religion under
the First and Fourteenth Amendments to the United States Constitution; (2) a failure to
comply with Penal Code section 5030.1, subdivision (a); and (3) a failure to comply with
RLUIPA (42 U.S.C. § 2000cc et seq.). The Petition also added an allegation that
Respondents violated the American Indian Religious Freedom Act (AIFRA) (42 U.S.C.
§ 1996).3
The Petition alleged among other things that Rhoades was "being denied the right
to make prayer ties, prayer offering, and spirit offerings with 'straight tobacco' which is
an essential, and central part of the American Indian religious rites," and clarified that
Rhoades's claim was not based on the "use of the Sacred Pipe." To support the allegation
3 AIFRA states: On and after August 11, 1978, "it shall be the policy of the United
States to protect and preserve for American Indians their inherent right of freedom to
believe, express, and exercise the traditional religions of the American Indian, Eskimo,
Aleut, and Native Hawaiians, including but not limited to access to sites, use and
possession of sacred objects, and the freedom to worship through ceremonials and
traditional rites." (42 U.S.C. § 1996.) We note that courts have held that " 'AIRFA is
simply a policy statement and does not create a cause of action or any judicially
enforceable individual rights.' " (U.S. v. Mitchell (9th Cir. 2007) 502 F.3d 931, 949.)
4
that use of straight tobacco is a central part of Native American religious practice,
Rhoades attached as an exhibit a document from 1987. Specifically, the document
appears to be a lodged stipulation for entry of judgment in a lawsuit filed in federal court
in the Eastern District of California (Sample v. R. G. Borg, Civ. No. S-85-0208-LLK
(Sample).)4 Sample was apparently a class action lawsuit brought by Native American
inmates of Folsom State Prison against prison officials. Rhoades's Petition identifies
paragraph 14 of the lodged stipulation in Sample, which states: "Defendants recognize
that American Indian believers and practitioners believe that tobacco ties are of religious
significance. Tobacco ties consist of tobacco wrapped in cloth fragments and secured by
clove hitches on a string. American Indian believers and practitioners shall be allowed to
make and possess tobacco ties for offerings at the sweat lodge ceremony under the same
terms that other general population prisoners are allowed to use and possess chewing and
smoking tobacco and the containers in which chewing and smoking tobacco are stored."
In the Petition, Rhoades alleged that after the possession or use of tobacco in
prison was generally prohibited by the enactment of Penal Code section 5030.1 in 2004,
prison officials at Calipatria continued to allow Native American prisoners to use straight
tobacco in their religious ceremonies. According to Rhoades the policy was changed in
June 2014. Although not completely clear from the allegations in the Petition, it appears
4 The stipulation for entry of judgment attached by Rhoades to the Petition was a
lodged copy signed only by counsel for the plaintiffs. There is no indication that the
stipulation was approved by the defendants in that case or by the court. Therefore,
without further evidence as to whether the lodgment was ultimately approved by
defendants and the court, the lodgment is of limited evidentiary value in this case.
5
that the new policy prohibits the use of straight tobacco in religious ceremonies and
requires that it be replaced by a mixture called "kinnikinnick," which contains tobacco
and other herbs.5 Rhoades alleges that "[t]here are no alternatives that can replace the
use of 'straight tobacco' for the making of prayer ties . . . ." He further alleges that it
would not adversely affect the functioning of the prison were Native American prisoners
permitted to use straight tobacco during religious ceremonies, as that practice was
allowed for 10 years after tobacco was prohibited in prison, with no demonstrated
problems.
On May 22, 2015, we issued an order to show cause why the relief prayed for in
the Petition should not be granted, and we directed that the order to show cause be
returnable before the Imperial County Superior Court. Our order stated: "The superior
court is directed to appoint counsel for Rhoades, set a schedule for any supplemental
briefing, the return and traverse, conduct any evidentiary hearing that may be required
and determine the matter."
C. Proceedings in the Trial Court on the Petition
After receiving our order, the trial court issued its own order to show cause and
directed Respondents to file a return. The trial court also appointed counsel for Rhoades.
5 The policy put into effect in June 2014 is clarified in an exhibit filed by
Respondents as part of their return. Specifically, a memorandum from Chaplain Richey
to Native American sweat lodge practitioners states that "kinnikinnick is the only form of
'tobacco' legally authorized for use in Sweat Lodge ceremony. . . . Any previous
authorization for use of straight tobacco is no longer in effect . . . ."
6
At Rhoades's subsequent request, appointed counsel was relieved and Rhoades
represented himself in the trial court.6
The proceedings in the trial court were initially stayed based on Respondents'
representation to the trial court that the Department was considering adopting statewide
regulations allowing the use of straight tobacco in Native American religious ceremonies,
which would have made the instant dispute moot. Respondents ultimately informed the
trial court that the expected regulations would not be adopted. The stay was lifted and
Respondents filed a return to the Petition on December 17, 2015.
In their return, Respondents admitted that Rhoades had exhausted his
administrative remedies but denied that Rhoades was entitled to relief. Among other
things, Respondents explained that current Department policy allows Native American
prisoners to use kinnikinnick during religious ceremonies, and they specifically denied
"that the required use of kinnikinnick instead of straight tobacco burdens, let alone
substantially burdens, Rhoades's ability to exercise his religious beliefs."
Respondents also alleged that they have "a legitimate penological interest" in
denying Rhoades the ability to use straight tobacco. Specifically, Respondents alleged
that "like the possession of . . . other contraband, an inmate's possession of tobacco within
a prison creates an issue of safety and security for the entire institution" and stated that
the Department "has a significant interest in minimizing health care costs of its
6 On appeal Rhoades is represented by a court-appointed attorney from Appellate
Defenders, Inc.
7
employees and inmates, which is accomplished by prohibiting tobacco use in any of its
institutions."
Respondents' return also included the allegation that "Rhoades's allegations within
his petition do not give rise to any evidentiary issues that need to be resolved before his
legal claims can be addressed."
Rhoades filed a denial to the return (sometimes referred to as a "traverse") on
March 28, 2016. He also disputed Respondents' allegation that the use of straight
tobacco during religious ceremonies would compromise safety and security in the prison
or meaningfully impact health care costs. Rhoades disagreed with Respondents'
statement that no evidentiary hearing was needed, stating that his "habeas petition
depends on the resolution of the facts at issue, and that requires an evidentiary hearing,
discovery and expert witnesses." (Italics added.)
In his memorandum of points and authorities in support of his denial, Rhoades
expanded on his allegations about the importance of tobacco use in Native American
religious ceremonies. "Petitioner avers that Respondents are in fact removing a central
ritual aspect of the Sweat Lodge ceremony. The smoking and offering of tobacco is a
central religious ceremony of the Sweat Lodge. The sending of ritual prayers to the
Creator with tobacco in the Sweat Lodge ceremony is recognized as a central and
principal means by which purification is accomplished . . . ." Rhoades stated that he "can
have an expert witness testify to these facts" and "[a] traditional Spiritual Leader can
testify to Petitioner's claim."
8
On April 8, 2016, the trial court issued an order granting the Petition.7 In its
statement of decision, the trial court stated that our May 22, 2015 order to show cause
"clearly manifested a disagreement with the [Department] that, as a matter of law, the
substitution of kinnikinnick for straight tobacco adequately balances the security interests
of the [Department] against [Rhoades's] rights under [RLUIPA]." The trial court
proceeded to explain that it had relied solely on the Petition, the return, the denial, and
the exhibits attached to those documents, to conclude that Rhoades was entitled to relief
on the Petition without holding an evidentiary hearing because Rhoades had established a
violation of RLUIPA.
The trial court stated, "The 2014 announcement of the kinnikinnick policy offers
no reason for the change at that time, and Respondent offers no indication, from a
religious standpoint, as to how it is that the kinnikinnick is an appropriate substitute for
straight tobacco in the ceremonies. Although Respondent has stated an argument for the
7 It appears that in ruling on the Petition, instead of considering the Petition (filed
with this court on Apr. 29, 2015), the trial court considered the petition that Rhoades filed
in Imperial County Superior Court on February 4, 2015, and which was already denied by
that court. We reach this conclusion because (1) the trial court explicitly identifies
February 4, 2015, as the date of Rhoades's petition; (2) the content of the trial court's
order granting the Petition refers to allegations appearing solely in the February 4, 2015
petition (such as an allegation about a shortage of wood for sweat lodge ceremonies) and
also states that Rhoades was unclear about matters that Rhoades actually clarified in the
subsequent Petition (such as his tribal affiliation); (3) in preparing the clerk's transcript,
the clerk of the Imperial County Superior Court did not include the Petition in the clerk's
transcript, and instead included the February 4, 2015 petition; and (4) in their joint
stipulation to augment the record to include the Petition, the parties explained that they
had been informed by the clerk of Imperial County Superior Court that the Petition was
not in the court's file.
9
prohibition of tobacco use in its facilities generally, it has not provided either evidence or
an offer of proof that kinnikinnick is a fully appropriate substitute for straight tobacco in
American Indian religious ceremonies generally, or that any procedures the [Department]
might have in place to control the management and disposition of straight tobacco that
would be used in such ceremonies would be an undue burden on its systems. [¶] In the
absence of such a showing in the Return and with the denial of the pertinent allegations
of the Return in the Denial and affirmative allegations by Petitioner that his rights under
[RLUIPA] are being inappropriately infringed, the granting of relief may be had without
the necessity of an evidentiary hearing." The trial court noted that according to the
Department Operations Manual, which Rhoades submitted as an exhibit to both the
Petition and his denial, the Department allows sacramental wine to be used in religious
ceremonies.8 The trial court stated, "No reason is articulated by Respondent as to why
similar procedures could not be implemented with respect to ceremonial tobacco."
Based on this reasoning, the trial court concluded that "given the dearth of
evidence as to the propriety of kinnikinnick as a medium in American Indian ceremonies,
and the dearth of evidence that it would not be reasonably possible for the [Department]
8 According to our review of the documents attached to Rhoades's pleadings, it may
be the case that non-alcoholic sacramental wine is used in prison religious ceremonies.
Rhoades attaches to the Petition and to his denial a document titled "Department
Operations Manual Supplement Religious Services Attachment D." The date and
purpose of this document is not clear from the record. However, we note that it
references the use of non-alcoholic sacramental wine in religious ceremonies. On this
factual issue, as on many others, additional factual development is necessary through an
evidentiary hearing because the documents in the record are not adequate to create an
accurate understanding of the relevant facts.
10
to formulate a policy for the use of straight tobacco in American Indian religious
ceremonies that is similar to that already in place for sacramental wine, such relief is
appropriate." The trial court therefore issued the following order: "1. An evidentiary
hearing is not required. [¶] 2. The court deems the petition as one for Writ of Mandate,
and commands the [Department], within a reasonable time, to exercise reasonable
discretion to formulate and implement policies permitting and reasonably regulating the
possession and use of straight tobacco in American Indian religious ceremonies only, just
as it currently maintains such policies as to sacramental wine."9
II.
DISCUSSSION
Respondents appeal from the trial court's order. Summing up their argument,
Respondents contend, "Misconstruing the significance of this Court's [order to show
cause], the superior court erroneously relieved Rhoades of his burden to prove (as
opposed to just allege) that [the Department's] policy substantially burdened the exercise
of his religious beliefs. . . . The superior court . . . erred by granting relief without an
evidentiary basis." Respondents argue, "to the extent the parties' pleadings contained
conflicting factual allegations regarding the viability of kinnikinnick as an appropriate
9 It is not clear why the trial court deemed the Petition to be a petition for writ of
mandate. Case law establishes that a "RLUIPA claim may be adjudicated in [a] habeas
corpus proceeding and . . . a violation of RLUIPA may be the basis for habeas corpus
relief." (In re Garcia (2012) 202 Cal. App. 4th 892, 902 [granting relief under RLUIPA
in a habeas corpus proceeding, including issuing an order directing the Department to
allow the prisoner to participate in a kosher meal program].)
11
substitute for pure tobacco under the RLUIPA, an evidentiary hearing should have been
conducted before the superior court resolved the disputed issues of fact." As we will
explain, we agree. The trial court improperly resolved disputed factual issues in a habeas
corpus proceedings without first holding an evidentiary hearing and considering evidence
on the following issues relevant in a RLUIPA claim: (1) whether Rhoades proved that
the prohibition on the use of straight tobacco substantially burdens his ability to exercise
his religious beliefs; and (2) in the event Rhoades proves a substantial burden on his
religious exercise, whether Respondents proved that the ban on the use of straight
tobacco is the least restrictive means of furthering a compelling governmental interest.
A. Legal Standards Applicable to a RLUIPA Claim
Although Rhoades alleged several legal grounds for relief in the Petition, the trial
court cited RLUIPA as the basis for its order granting relief. We accordingly limit our
analysis to Rhoades's RLUIPA claim and express no view on the merits of the claims on
which the trial court did not rule.10
RLUIPA provides that "[n]o government shall impose a substantial burden on the
religious exercise of a person residing in or confined to an institution . . . even if the
burden results from a rule of general applicability, unless the government demonstrates
that imposition of the burden on that person [¶] (1) is in furtherance of a compelling
10 As we have explained, the Petition also alleged (1) an infringement of Rhoades's
right to freedom of religion under the First and Fourteenth Amendments to the United
States Constitution; (2) a failure to comply with Penal Code section 5030.1, subdivision
(a); and (3) a violation of AIFRA (42 U.S.C. § 1996). If necessary, the trial court should
consider these claims on remand.
12
governmental interest; and [¶] (2) is the least restrictive means of furthering that
compelling governmental interest." (42 U.S.C. § 2000cc-1(a).) Thus, put simply,
RLUIPA "prohibits a state or local government from taking any action that substantially
burdens the religious exercise of an institutionalized person unless the government
demonstrates that the action constitutes the least restrictive means of furthering a
compelling governmental interest." (Holt v. Hobbs (2015) 574 U.S. __ [135 S. Ct. 853,
859] (Holt).)
Under RLUIPA, the petitioner bears the initial burden of proving that the
challenged policy implicates his religious exercise. (Holt, supra, 574 U.S. at p. ___ [135
S.Ct. at p. 862].) "RLUIPA protects 'any exercise of religion, whether or not compelled
by, or central to, a system of religious belief,' [42 U.S.C.] § 2000cc-5(7)(A), but, of
course, a prisoner's request for an accommodation must be sincerely based on a religious
belief and not some other motivation [citation]." (Ibid.) "In addition to showing that the
relevant exercise of religion is grounded in a sincerely held religious belief," a petitioner
also bears the burden of proving that the governmental policy "substantially burdened
that exercise of religion." (Ibid.) "RLUIPA's 'substantial burden' inquiry asks whether
the government has substantially burdened religious exercise . . . , not whether the
RLUIPA claimant is able to engage in other forms of religious exercise." (Ibid.)
If the petitioner meets his burden to prove that the challenged policy substantially
burdens his exercise of religion, the burden shifts to the respondents to show that their
policy " '(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the
least restrictive means of furthering that compelling governmental interest.' [42 U.S.C.]
13
§ 2000cc-1(a)." (Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at p. 863].) In examining
whether a compelling interest exists, "RLUIPA requires us to ' "scrutiniz[e] the asserted
harm of granting specific exemptions to particular religious claimants" ' and 'to look to
the marginal interest in enforcing' the challenged government action in that particular
context." (Ibid.) Further with respect to the second part of the required showing " '[t]he
least-restrictive-means standard is exceptionally demanding,' and it requires the
government to 'sho[w] that it lacks other means of achieving its desired goal without
imposing a substantial burden on the exercise of religion by the objecting part[y].'
[Citation.] '[I]f a less restrictive means is available for the Government to achieve its
goals, the Government must use it.' " (Id. at p. 864.)
Illustrating the burden shifting analysis applicable in a RLUIPA claim, our
Supreme Court in Holt analyzed whether a statewide prison policy prohibiting a devout
Muslim prisoner from growing a one-half-inch-long beard violated the rights of that
prisoner under RLUIPA. (Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at p. 867].) Initially,
the prisoner met his burden during an evidentiary hearing by proving that the prohibition
on growing a beard substantially burdened his religious exercise. Specifically, he
presented undisputed testimony that he believed growing a beard was a required dictate
of his religious faith and he showed that he would be disciplined by the prison if he acted
upon those religious beliefs. (Id. at p. 862.) The burden therefore shifted to prison
officials to prove that their refusal to allow the prisoner to grow a one-half-inch-long
beard was the least restrictive means of furthering a compelling governmental interest.
(Id. at p. 863.) Holt concluded, based on the evidence, that prison officials did not satisfy
14
their burden because they could not establish that the prohibition on a short beard was the
least restrictive means of achieving their expressed goals of preventing prisoners from
hiding contraband or disguising their identities. (Id. at pp. 863-865.) Among other
things, Holt observed that in the unlikely event that contraband could be hidden in a short
beard, that danger could be eliminated by searching the beard, as is done with hair and
clothing. (Id. at p. 864.) Further, the problem of prisoners concealing their identity by
shaving off their beards could be prevented by requiring that prisoners be photographed
without a beard on a periodic basis. (Id. at p. 865.) Holt explained that in determining
whether prison officials have met their burden to prove that they are using the least
restrictive means to achieve an interest, "[c]ourts must hold prisons to their statutory
burden, and they must not 'assume a plausible, less restrictive alternative would be
ineffective.' " (Id. at p. 866.)
B. The Procedures Applicable in Habeas Corpus Proceedings
As our next step in assessing whether the trial court improperly granted the
Petition based on Rhoades's RLUIPA claim without holding an evidentiary hearing on
disputed factual issues, we review the procedures applicable to habeas corpus
proceedings.
"A habeas corpus proceeding begins with the filing of a verified petition for a writ
of habeas corpus. . . . When presented with a petition for a writ of habeas corpus, a court
must first determine whether the petition states a prima facie case for relief—that is,
whether it states facts that, if true, entitle the petitioner to relief—and also whether the
stated claims are for any reason procedurally barred. . . . [¶] . . . When . . . a habeas
15
corpus petition is sufficient on its face (that is, the petition states a prima facie case on a
claim that is not procedurally barred), the court is obligated by statute to issue a writ of
habeas corpus." (People v. Romero (1994) 8 Cal. 4th 728, 737, citations omitted
(Romero).) To avoid the physical necessity of having a prisoner brought before the court,
courts have " 'developed the practice of ordering the custodian to show cause why the
relief sought should not be granted.' [Citations.] When used as a substitute for the writ
of habeas corpus, the order to show cause 'directs the respondent custodian to serve and
file a written return[,]' . . . when a habeas petition states a prima facie case for relief." (Id.
at p. 738.)
"The return, which must allege facts establishing the legality of the petitioner's
custody, 'becomes the principal pleading' . . . and is 'analogous to the complaint in a civil
proceeding' . . . . [¶] Upon the submission of the written return, the petitioner 'may deny
or controvert any of the material facts or matters set forth in the return, or except to the
sufficiency thereof, or allege any fact to show either that his imprisonment or detention is
unlawful, or that he is entitled to his discharge.' . . . The petitioner's response to the
return, commonly known as the traverse, may incorporate the allegations of the
petition. . . . Any allegation of the return not controverted by the traverse is deemed
admitted. . . . The traverse is analogous to the answer in a civil proceeding. . . . Thus, it
is through the return and the traverse that the issues are joined in a habeas corpus
proceeding." (Romero, supra, 8 Cal.4th at pp. 738-739, citations omitted.)
"Once the issues have been joined in this way, the court must determine whether
an evidentiary hearing is needed. If the written return admits allegations in the petition
16
that, if true, justify the relief sought, the court may grant relief without an evidentiary
hearing. . . . Conversely, consideration of the written return and matters of record may
persuade the court that the contentions advanced in the petition lack merit, in which event
the court may deny the petition without an evidentiary hearing. . . . Finally, if the return
and traverse reveal that petitioner's entitlement to relief hinges on the resolution of factual
disputes, then the court should order an evidentiary hearing." (Romero, supra, 8 Cal.4th
at pp. 739-740, citations omitted.) California Rules of Court, rule 4.551(f) states: "An
evidentiary hearing is required if, after considering the verified petition, the return, any
denial, any affidavits or declarations under penalty of perjury, and matters of which
judicial notice may be taken, the court finds there is a reasonable likelihood that the
petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the
resolution of an issue of fact."
When, as here, the appellate court specifies in the order to show cause that the
return is to be filed in the superior court "[t]his effectively transfers the proceeding to the
superior court, and that court will conduct any evidentiary hearing that may be required.
After the evidentiary hearing, the court in which the return has been filed will then either
grant or deny relief based upon the law and the facts as so determined." (Romero, supra,
8 Cal.4th at p. 740.)
C. Our May 22, 2015 Order to Show Cause Was Not a Ruling on the Merits that
Rhoades Had Satisfied His Burden on His RLUIPA Claim
In this case, when we issued the order to show cause returnable in the superior
court, there had not yet been a return or a denial filed, and therefore the issues had not yet
17
been joined in the habeas corpus proceeding. Under those circumstances, our order to
show cause could not have expressed a view on the issue of whether Rhoades would
ultimately prevail on his RLUIPA claim. Our issuance of the order to show cause
"signifie[d] our 'preliminary determination that the petitioner has made a prima facie
statement of specific facts which, if established, entitle [petitioner] to habeas corpus relief
under existing law.' " (In re Serrano (1995) 10 Cal. 4th 447, 455, second italics added.)
In issuing the order to show cause, we relied on the allegation in the Petition that
(1) by prohibiting the use of straight tobacco during religious ceremonies, Respondents
were denying Rhoades "the right to make prayer ties, prayer offering, and spirit offerings
with 'straight tobacco' which is an essential, and central part of the American Indian
religious rites," and (2) Respondents acted without a valid penological interest in
prohibiting the use of straight tobacco in religious ceremonies because, allegedly, no
problems had arisen during the 10 years when an exception was made for use of straight
tobacco in religious ceremonies, and there were less restrictive means to accomplishing
their penological interests. We issued the order to show cause because if ultimately
proved to be true, those allegations would entitle Rhoades to relief under RLUIPA.
However, in issuing the order to show cause we expressed no view as to whether
Rhoades would be able to prove that his religious practice was substantially burdened or
whether Respondents would be able to prove that the prohibition on the use of straight
tobacco was the least restrictive means of furthering a compelling governmental interest,
both of which are factual issues that must ultimately be resolved in deciding a RLUIPA
claim.
18
The trial court therefore erred in interpreting our May 22, 2015 order to show
cause as "manifest[ing] a disagreement with the [Department] that, as a matter of law, the
substitution of kinnikinnick for straight tobacco adequately balances the security interests
of the [Department] against [Rhoades's] rights under [RLUIPA]." Our order to show
cause was merely a preliminary determination based on the allegations in the Petition. It
was not a ruling on any of the ultimate issues in this case.
Rhoades contends that the trial court properly relied on the May 22, 2015 order to
show cause to shift the burden to Respondents under RLUIPA. Specifically, Rhoades
argues that "this Court already has held, by issuing the Order to Show Cause, that
Rhoades has made his prima facie case that the change in policy completely banning the
use of straight tobacco in American Indian religious ceremonies substantially burdens his
exercise of religion. Thus, . . . the burden then properly shifted to [Respondents] to
present evidence that the new ban was necessitated by a 'compelling governmental
interest' and that the complete ban on use of straight tobacco was the 'least restrictive
means'[.]" Rhoades's argument fails because it is premised on a misunderstanding of our
order to show cause. The sole significance of our order to show cause was to establish
that the Petition "states facts that, if true, entitle the petitioner to relief." (Romero, supra,
8 Cal.4th at p. 737, italics added.) Regardless of the order to show cause, Rhoades is still
required to prove as a factual matter the truth of his allegations that Respondents' policy
substantially burdens his religious exercise. Only if Rhoades is ultimately able to make
such showing would the burden shift to Respondents to prove that by adopting their
policy prohibiting the use of straight tobacco they were furthering a compelling
19
governmental interest in the least restrictive manner. (RLUIPA, 42 U.S.C.
§ 2000cc-1(a); Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at pp. 862-863].)
C. The Return and Denial Established Disputed Factual Issues That Required the
Trial Court to Hold an Evidentiary Hearing
As the return and the denial frame the factual issues in dispute in the proceedings,
we look to those pleadings to answer the question before us, namely whether disputed
factual issues existed that required the trial court to hold an evidentiary hearing before
ruling on Rhoades's RLUIPA claim.
As we have explained, to prevail on his RLUIPA claim, Rhoades had the initial
burden to establish that the prohibition on the use of straight tobacco during religious
ceremonies substantially burdened his religious exercise. (RLUIPA, 42 U.S.C.
§ 2000cc-1(a); Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at p. 862].) The return disputed
that Rhoades's religious exercise was substantially burdened. Specifically, Respondents
denied "that the required use of kinnikinnick instead of straight tobacco burdens, let alone
substantially burdens, Rhoades's ability to exercise his religious beliefs." In Rhoades's
denial, he disputed Respondents' assertion that his religious exercise was not substantially
burdened. Further, in his memorandum of points and authorities in support of the denial,
Rhoades explained that at an evidentiary hearing he would present evidence from a
Native American spiritual leader establishing the importance of using straight tobacco
during religious ceremonies.
Thus, based on the content of the return and the traverse, a clear factual dispute
existed as to whether the prohibition on the use of straight tobacco during religious
20
ceremonies substantially burdened Rhoades's religious exercise.11 The trial court's order
erroneously ignored this factual dispute. Instead of holding an evidentiary hearing, the
trial court appears to have erroneously relied on our May 22, 2015 order to show cause
for its ruling on the merits that Respondents' policy against the use of straight tobacco
substantially burdens Rhoades's religious exercise.
Further, the return and denial established that a clear factual dispute existed
regarding the second part of the RLUIPA analysis, namely whether, in the event the
burden shifted to Respondents, they could prove that the prohibition on the use of straight
tobacco was the least restrictive means of furthering a compelling governmental interest.
(RLUIPA, 42 U.S.C. § 2000cc-1(a); Holt, supra, 574 U.S. at p. ___ [135 S.Ct. at p. 863.)
In their return, Respondents alleged they have a "compelling state interest [in] prison
security" and that "like the possession of . . . other contraband, an inmate's possession of
tobacco within a prison creates an issue of safety and security for the entire institution."
Further the return alleged that Department "has a significant interest in minimizing health
care costs of its employees and inmates, which is accomplished by prohibiting tobacco
11 The trial court's order noted that Respondents had included in their denial a
paragraph stating that "Rhoades's allegations within his petition do not give rise to any
evidentiary issues that need to be resolved before his legal claims can be addressed."
Rhoades also relies on this statement by Respondents to defend the trial court's decision
to rule on the Petition without holding an evidentiary hearing. Unlike the trial court and
Rhoades, we do not view this statement as a concession by Respondents that the trial
court could rule on the Petition in favor of Rhoades even if, after reviewing the return and
the denial, it concluded that disputed factual issues needed to be resolved. Further, as we
have explained, it is the return and the denial that frame the issues. Respondents'
statement as to whether it believed the Petition (rather than the return and the denial)
presented disputed factual issues is of no significance.
21
use in any of its institutions." In their memorandum of points and authorities in support
of the return, Respondents argued that "the allowance of kinnikinnick is already the least
restrictive alternative to a complete ban on all tobacco."
Rhoades disputed these allegations in his denial, taking the position that the use of
straight tobacco during religious ceremonies would not compromise safety and security
in the prison or meaningfully impact health care costs. Rhoades argued in the
memorandum of points and authorities in support of his denial that Respondents could
not establish a compelling state interest based on security in prohibiting the use of
straight tobacco during religious ceremonies because no problems had arisen under the
former policy, and there were also less restrictive means of preventing any security
problems, such as instituting a policy of searching prisoners after the religious
ceremonies. Rhoades also disputed that any meaningful health problems were associated
with the use of straight tobacco in religious ceremonies because "the amount of straight
tobacco used in [the] ceremony is nominal, and fleeting, literally, ephemeral." Taken
together, these statements establish a factual dispute between the parties as to whether
Respondents were furthering a compelling governmental interest in the least restrictive
manner by prohibiting the use of straight tobacco in religious ceremonies.
As our Supreme Court has emphasized, at the pleading stage of a habeas corpus
proceeding, "the [respondent's] burden [in the return] is one of pleading, not proof."
(People v. Duvall (1995) 9 Cal. 4th 464, 483.) Here, although Respondents presented
their allegations as to the disputed factual issue of whether their policy was based on a
compelling governmental interest and was narrowly tailored, they did not have the
22
opportunity to make a factual presentation. Nevertheless, the trial court ruled against
Respondents based on an erroneous requirement that they present evidence at this stage
of the proceedings, noting the "dearth of evidence" and stating that Respondents had not
"provided either evidence or an offer of proof" that their policy was based on a
compelling state interest and was the least restrictive approach.12
In sum, "if the return and traverse reveal that petitioner's entitlement to relief
hinges on the resolution of factual disputes, then the court should order an evidentiary
hearing." (Romero, supra, 8 Cal.4th at pp. 739-740.) Based on the factual disputes
described above, the trial court was required to hold an evidentiary hearing before ruling
on the Petition, and the trial court erred in not doing so.
12 Rhoades defends the trial court's decision to rule on the Petition despite the fact
that the return and the denial established disputed factual issues, contending that
Respondents "were given every opportunity to present their own documentary evidence,"
but "[t]hey chose not to do so." However this argument fails because it misapprehends
the applicable procedures in a habeas corpus proceeding. As we have explained, the role
of the return and the denial are to frame the issue to determine if an evidentiary hearing is
required, not to constitute a final presentation of evidence to resolve disputed issues.
(Romero, supra, 8 Cal.4th at pp. 738-739.)
23
DISPOSITION
The judgment is reversed and this matter is remanded with directions for the trial
court to hold an evidentiary hearing on Rhoades's April 29, 2015 Petition and thereafter
to issue a ruling. The parties are to bear their own costs on appeal.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
24
Filed 4/12/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re GREGORY L. RHOADES D070488
on (Imperial County
Super. Ct. No. EHC01917)
Habeas Corpus.
ORDER CERTIFYING OPINION
FOR PUBLICATION
THE COURT:
The opinion in this case filed March 22, 2017 was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), appellant's request pursuant to California Rules of Court,
rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not To Be Published In Official Reports" appearing on
page 1 of said opinion be deleted and the opinion herein be published in the Official Reports.
O'ROURKE, Acting P. J.
Copies to: All parties