# Sterling v. Cupp

> Oregon Supreme Court · March 4, 1981 · 290 Or. 611

URL: https://www.frixlaw.com/law-library/cases/9544560

## Case

- **Full name:** DAVID J. STERLING Et Al, Respondents, v. CUPP Et Al, Petitioners, and DERR Et Al, Intervenor-Petitioners
- **Court:** Oregon Supreme Court
- **Decided:** March 4, 1981
- **Citations:** 290 Or. 611; 625 P.2d 123; 32 Empl. Prac. Dec. (CCH) 33,822; 31 Fair Empl. Prac. Cas. (BNA) 427; 1981 Ore. LEXIS 694
- **Precedential status:** Published
- **Opinion:** Dissent by Tanzer
- **Judges:** Tongue, Tanzer, Unde, Peterson
- **Cited by:** 159 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9544560

## How later opinions describe it (automated extraction)

- explaining that “what is or is not an indignity is largely a matter of social and indi- vidual psychology,” and “a practice may appear to be so from the purpose of its imposition” among other perspectives
- explaining “first things first” doctrine

## Opinion text

TANZER, J.,
dissenting.
I disagree with the majority as a matter of degree rather than of theory. I believe as a matter of firm conviction that the courts should intervene into the management of prisons only with great restraint and only for reasons of sufficient magnitude to justify extraordinary action. I do not suggest that constitutional rights of prisoners should be protected with less vigor than the rights of others. Rather, it is my profound belief that courts should not regard the federal or the Oregon constitutions as licenses for the imposition of judicially preferred practices upon the prison system.
The controlling fact of this case is that there is no challenge to the authority of the state to subject plaintiffs to searches. The only challenge is to the authority of the *638 to searches. The only challenge is to the authority of the state to have the searches performed by persons of either sex.
For that reason, I see no violation of plaintiffs’ reasonable expectation of privacy. They concede that their privacy may be intruded upon. As prisoners, plaintiffs’ expectation of privacy is not lessened and their exposure to searches is not enlarged according to the sex of the person searching.
I agree that the constitutional term "unnecessary rigor” applies to penal action which abuses prisoners physically or emotionally. Bread and water, torture, exhausting labor, public display, inadequate shelter and emotional harassment come to mind as examples of the kinds of physical or emotional torment which the "unnecessary rigor” clause was intended to prevent. Pat-down searches by persons of either sex does not come anywhere close to the magnitude of those examples of rigor, although subjection to heterosexual or homosexual fondling or sexual activity by guards would be. I see no evidence that the "unnecessary rigor” clause was intended to authorize the courts to enforce standards of delicacy or courtesy among adults in prison in the name of the constitution. Standards formulated by organizations and institutions such as the American Bar Association and the United Nations are worthy of respectful attention from the legislature or the executive branch, but they are no substitute for the constitution and they do not provide a mandate for judicial intervention.
The conduct of otherwise permissible searches by persons of either sex is not a breach of fundamental civility which is constitutionally forbidden as "unnecessary rigor.” For these reasons, the injunction should have been denied.
Peterson, J., joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9544560. Public record. Not legal advice.