Andres SANCHEZ, et al.
WARDEN, STATE PRISON.
Argued Dec. 12, 1989.
Richard T. Biggar, Asst. Atty. Gen., with whom, on the brief, was Clarine Nardi Riddle, Atty. Gen., for appellant-appellee (respondent).
David L. Kent, for appellees and appellee-appellant (petitioners and petitioner Joseph Wilson).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and GLASS, JJ.
[214 Conn. 24] SHEA, Associate Justice.
The principal issue in this appeal is whether the first amendment to the United States constitution  was violated when the respondent, the warden of the Connecticut Correctional Institution at Somers, denied the petitioners  access to radios with sound emitting speakers, despite having allowed them to possess radios that could be listened to by means of headphones.  We
hold that the first amendment was not implicated by the respondent's policy and conclude, therefore, that the trial court erred when it ordered the respondent to make regular radios available to all prisoners at Somers.
[214 Conn. 25] These actions, consolidated for trial Before the Superior Court, Axelrod, J., had as their origin a habeas corpus action brought by petitioner Wilson in 1986, seeking, inter alia, the return of an "AM/FM Radio" and color television set that had been confiscated by the respondent. After a trial held on August 8, 1986, the court, O'Neill, J., ordered that the "radio/stereo/recorder" be returned to Wilson and that "Mr. Wilson's family or friends [could] collect the television set that was taken."
In the wake of this order, petitioners Wood, Hansen, Veal, Walker and Sanchez each filed, on various dates during the period from September, 1986, through February, 1987, a petition for a writ of habeas corpus, alleging that the respondent had denied them access to radios essentially similar to the radio that had been returned to Wilson. The respondent meanwhile, on September 25, 1986, moved to set aside Judge O'Neill's order returning Wilson's radio. In an affidavit supporting the motion, counsel for the respondent asserted that it had "come to respondent's attention ... that the radio in question ha[d] a recording capacity." The respondent claimed that the judgment should be set aside since the issue of a recording device had not been considered at the trial Before Judge O'Neill and that "[s]uch a recording capacity [could] well threaten the security of [the] petitioner and other inmates at CCI, Somers." After considering an objection filed by Wilson, the trial court, Ripley, J., set aside the prior judgment "insofar as it pertains to disposition of the recording device."
In response to the petitioner Wilson's motion for a full hearing, motion to show cause, motion for judgment and application for a writ of mandamus, the trial court, Mack, J., held a hearing on March 6, 1987. Wilson stated at this hearing that the purpose of his motions was to "set the verdict [of Judge O'Neill] back [214 Conn. 26] in its place." Wilson charged that counsel for the respondent had filed the supporting affidavit in bad faith, since Judge O'Neill had, as evidenced by the transcript of the prior trial, been aware of the recording device. On March 16, 1987, Judge Mack denied Wilson's various motions and ordered that a new trial be conducted on the issue of the recording device.
The respondent, on May 9, 1988, moved to quash each of the pending petitions, alleging that they raised issues "which [were] not cognizable in habeas corpus." Each motion was denied by the trial court, Axelrod, J., on May 11, 1988. The respondent then filed a return in each case, asserting that each petitioner was "not allowed to possess a 'boom-box' type radio/recorder at CCI, Somers because the possession of such radios is a threat to the security of inmates, staff and visitors...." The trial court then granted, also on May 11, the respondent's motion to consolidate all of the pending cases. The trial took place over the course of two days, May 11 and May 13, 1988. On the latter date, the trial court canvassed the petitioners and allowed an amendment to each of the petitions "to include a First Amendment violation as part of the claims."
In its memorandum of decision, the trial court concluded that "access to a radio is a protected First Amendment right," and, on the basis of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), and Gaines v. Manson, 194 Conn. 510, 481 A.2d 1084 (1984), granted the petitions and ordered that the respondent "forthwith make available for sale at the CCI, Somers commissary regular sound emitting radios that do
not require the use of earplugs to be heard." The respondent has appealed from this judgment claiming that the trial court erred in: (1) concluding that the petitioners had a first amendment right to possess radios with external speakers; [214 Conn. 27] and (2) hearing the habeas corpus petitions, since they involved no issue affecting the constitutionality of the petitioners' confinement. The petitioner Joseph Wilson has filed a cross appeal in which he claims that the trial court erred in setting aside the prior judgment rendered in his favor. Further facts pertinent to these issues will be set forth in the opinion that follows. We find error on the appeal and no error on the cross appeal.
In his principal claim of error, the respondent asserts that: (1) the trial court erred in concluding that there was any constitutional difference between regular radios and headphone radios; and (2) even if there were such a difference, the right to possess a regular radio was denied in this case on the basis of a valid penological security interest. We agree with the ...