SAIFULLAH ABDUL-ALAZIM vs. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, CEDAR JUNCTION, & others. [Note 1]

BERRY, J. This appeal challenges the entry of summary judgment for the defendant officials of the Massachusetts Correctional

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Institution at Cedar Junction (MCI-Cedar Junction) on a pro se complaint filed by the plaintiff, Saifullah Abdul-Alázim, an inmate. The litigation involves the inmate's claim that his right freely to exercise his religion under art. 46, § 1, of the Amendments to the Massachusetts Constitution [Note 2] was unconstitutionally infringed when, following his transfer to the prison's departmental disciplinary unit (DDU), he was not allowed to wear a kufi (also referred to in the record as a koofi), a prayer cap used in his practice of the Muslim faith. [Note 3] We reverse the judgment with respect to the claim under art. 46.

1. Procedural and factual background. On September 9, 1997, the plaintiff was transferred to the DDU for assaulting one of the correctional staff. With this transfer, restrictions on the articles of personal property that could be possessed in the DDU came into play, and the kufi, which the plaintiff had previously been allowed to possess and wear while he was in the general prison population, was taken from him. [Note 4] The plaintiff wrote to a DDU official requesting that his kufi and prayer book be returned. That request was denied in a letter to the plaintiff stating that "you will receive your K[o]ran, provided it is not a hard cover book (inmates are allowed to have one (1) Bible/religious book). In addition you will be allowed to have one (1) cubic foot of legal/religious materials. Koofies are not allowed in DDU. I trust this explains the rules for DDU regarding

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religious materials. I would encourage you to read the DDU Orientation Handbook for further information." Thereafter the plaintiff wrote a series of letters, all to no avail, and he remained without his kufi. On April 15, 1998, the plaintiff filed this complaint and a motion for an injunction. On June 4, 1998, a Superior Court judge granted a preliminary injunction which, in pertinent part, ordered that the plaintiff "shall be permitted to possess and wear a koofi while housed in the [DDU] at MCI-Cedar Junction. Nothing in this order shall prevent Department of Correction personnel from searching plaintiff's koofi in accordance with [departmental] search procedures."

The defendant correctional officers thereupon filed a motion for summary judgment, which came before a different Superior Court judge (the motion judge). With respect to the art. 46 claim, the motion judge first accepted the plaintiff's assertion in his verified complaint that depriving the plaintiff of his kufi constituted a substantial burden on the free exercise of his Muslim religion. [Note 5] The motion judge then concluded that the prison officials had advanced a compelling interest justifying deprivation of the kufi because the prayer cap was an article of clothing within which contraband or weapons could be hidden. In contrast, in granting summary judgment for the defendants on the other claims, the judge analyzed under the reasonable relationship standard the Federal free exercise claims advanced under the First Amendment to the United States Constitution and 42 U.S.C. § 1983. These Federal claims are not involved in this appeal. See note 2, supra. The constitutional standard of review under art. 46 is addressed in part 3 of this opinion.

2. Mootness. We first address the defendants' contention that the appeal is moot. The defendants argue that there is no actual

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pending controversy because, they say, the prison has "changed its policy" and now permits a DDU inmate to wear religious head wear, including a kufi. However, the defendants' presentation in the record of the alluded-to change in policy leaves much to the imagination. The defendants introduced no writing or documentation. Instead, as the sole indicator of a policy change, the defendants' brief states as follows: "In the case at bar, [the plaintiff's] claim for declaratory relief is now moot by virtue of the fact that the DDU policy has changed and [the plaintiff] is now permitted to possess and wear a koofi in the DDU," referencing note 3 of the brief. Note 3, in turn, states: "[the plaintiff's] affidavit of November 16, 1999, indicating the change in DDU policy, is attached to volume two of the Record Appendix. . . . See Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 532 (1937) (proper way to inform court of change in circumstances after disposition of case is through an affidavit)."

Accepting this as the only evidence of the changed policy, it is a most strange way for prison administrators to memorialize and document correctional policy, i.e., by referencing an inmate's affidavit. In any event, the matter is rendered even more curious by the supposed documentation of the changed policy, the inmate's affidavit. The affidavit merely states that sometime near the beginning of 1999, the plaintiff "was informed by a prison captain named John Jones . . . that [the plaintiff] could purchase koofies to possess and wear in the DDU," and that the captain provided "a price list of the koofies."

The inchoate nature of the alluded-to changed prison policy -- which, on this record, consists of an inmate's affidavit and an advertisement for the purchase of a kufi -- does not provide a solid enough foundation to ensure continuing definition on the issue of an inmate possessing a kufi in the DDU. Thus, in the absence of any submission by the defendants of a writing or a proposed regulation reliably documenting the new policy, this appeal is not rendered moot. [Note 6]

3. The art. 46 free exercise claim. The Supreme Judicial

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Court has not addressed the constitutional standard governing review of a prison policy that burdens free exercise rights protected by art. 46, § 1. Given this uncharted issue -- and notwithstanding the reasonable relationship standard applied in the context of prison administration by the United States Supreme Court in Turner v. Safley, 482 U.S. 78, 89-91 (1987), and O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987), and, subsequent to the Superior Court proceedings in this case, by the Supreme Judicial Court in Massachusetts Prisoners Assn. Political Action Comm. v. Acting Governor, 435 Mass. 811, 820 (2002) (hereinafter the Massachusetts Prisoners PAC case) -- the motion judge determined that the art. 46 challenge was governed by the compelling State interest standard. The judge's application of this heightened standard to the art. 46 free exercise claim differed from the analysis of the Federal First Amendment free exercise claims, which were reviewed under the reasonable relationship standard. [Note 7] The difference in

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methodology, in the main, is attributable to the separate modes of analysis in the jurisprudence concerning the free exercise of religion under the United States and Massachusetts Constitutions, as most pointedly marked by the formative decision in Attorney Gen. v. Desilets, 418 Mass. 316, 322 (1994), [Note 8] in which the court held that, for art. 46 constitutional analysis, the standard is whether a restriction "substantially burdens [the plaintiff's] free exercise of religion, and, if it does, whether the Commonwealth has shown that it has an interest sufficiently compelling to justify that burden."

However, in contrast to this standard of strict scrutiny for art. 46 religious rights, in determining the constitutionality of a prison policy that burdened the equally fundamental rights of free speech and association under arts. 1 and 16 of the Massachusetts Declaration of Rights, the court in the Massachusetts Prisoners PAC case declined to apply the compelling interest

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standard. Massachusetts Prisoners PAC, supra. Instead, the Supreme Judicial Court employed the more deferential standard of review generally applied in the prison context, which, as defined in Turner v. Safley, supra, and O'Lone v. Estate of Shabazz, supra, is that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Massachusetts Prisoners PAC, supra at 819, quoting from Turner v. Safley, supra at 89. In reaffirming this more deferential standard of review in the Massachusetts Prisoners PAC case, our State court "[acknowledged] the difficulty that prison officials face in the operation of prisons," and expressly rejected the compelling State interest standard for review of laws, regulations and policies involving prison administration: "[C]onsistent with the United States Supreme Court, we apply the reasonableness standard outlined in Turner, not [a] heightened scrutiny [standard]." Massachusetts Prisoners PAC case, 435 Mass. at 819-820 & n.9. [Note 9], [Note 10] Accord Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 770 (1996).

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Despite the potentially conflicting positions presented in this appeal concerning the standard of review, we decline to enter the thicket of free exercise law, which, at present, has a multitude of engrafted branches and much entanglement. This case may be resolved without the necessity of reaching for a particular branch. The Federal free exercise claim is not before us (see note 2, supra), and the Massachusetts free exercise claim may be resolved without reaching the ultimate constitutional question of which standard of review will generally govern art. 46 issues arising in a prison forum. This is so because, even when measured by the more deferential standard set forth in the Massachusetts Prisoners PAC case, the correctional defendants have not, on this record, met the lesser burden of proof of establishing a reasonable relationship to valid penological interests for the kufi restriction in the DDU. A fortiori, the defendants could not meet the compelling State interest standard.

As to the failure of proof, the correctional defendants suggest that a kufi poses the potential for concealing contraband or dangerous instrumentalities. However, the only evidence proffered by the defendants to support that proposition was an affidavit of the defendant John Marshall, superintendent of MCI-Cedar Junction, which simply stated, ipse dixit, that a kufi may be used to conceal contraband. [Note 11] This weak assertion is strongly rebutted by countervailing evidence in the record including the

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following. First, a kufi is available to, and may be possessed by, any member of the general prison population, and there is no evidence of different security concerns in that context. Second, the record contains an unrebutted representation that a kufi may be worn in the disciplinary segregation unit, a higher security cell area than the DDU. Third, the inmate Matthews wore his kufi for six years while held in the DDU. See note 6, supra. Fourth, during the winter months, DDU prisoners are given a thick stocking-like winter knit hat, an item more conducive to hiding contraband than a kufi, which is a skull cap. Finally, the defendants' assertion of a security risk is hollow in light of their professed changed policy that now allows DDU inmates to purchase and possess kufi prayer caps.

Because the defendants have not met their burden of establishing a constitutionally adequate justification for prohibition of the kufi from the DDU and the resultant burden on free exercise rights, we hold that the DDU restriction unconstitutionally abridged the plaintiff's religious rights protected under art. 46. Accordingly, summary judgment was improperly granted to the defendants on this claim. Because injunctive relief is the only matter remaining, [Note 12] and because a preliminary injunction had already entered setting forth appropriate terms and conditions, we conclude that there is no need for further proceedings in the Superior Court, except for entry of a judgment which, as requested in the complaint, would apply to any DDU inmate of the Muslim faith whose religious practice and prayers require the wearing of a kufi.

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Accordingly, we vacate the portion of the summary judgment dismissing the art. 46, § 1, claim and remand for entry of a judgment on that claim in the form of a declaration to provide as follows: the defendant officials of the Massachusetts Correctional Institution at Cedar Junction may not, consistent with art. 46, § 1, of the Amendments to the Massachusetts Constitution, prohibit the defendant and any other inmate assigned to the departmental disciplinary unit (DDU) from possessing and wearing a kufi, in the practice of his religion, while housed in the DDU. Nothing in this declaration shall be deemed to prevent Department of Correction personnel from searching any kufi in accordance with applicable procedures, or from undertaking other appropriate security measures. [Note 13]

So ordered.