PROCUNIER v. MARTINEZ

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Argument of W. Eric Collins

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-1465, Procunier against Martinez.

Mr. Collins, you may proceed whenever you’re ready.

Mr. W. Eric Collins: Mr. Chief Justice and may it please this Court.

First, I should like to apologize to the Court and to draw attention to a mistaken reply brief.

An omission to page 5, at footnote 3 at the foot of page 5 which should read, compare United States v. Wilson 447 F. 2d 1 at page 8 Ninth Circuit 1973, whereas United States v. Savage, there is no federal citation.

The number is as shown 72-3145, it is a Ninth Circuit case, August 8, 1973 and has been cited by counsel for appellees and I believe in that brief.

Justice Byron R. White: United States versus Savage, was it?

Mr. W. Eric Collins: Yes, sir.

Justice Byron R. White: S-A-V-A-G-E?

Mr. W. Eric Collins: S-A-V-A-G-E.

Justice Byron R. White: Thank you.

It’s footnote 5?

Chief Justice Warren E. Burger: Three on page 5.

Unknown Speaker: And that’s August 8?

Mr. W. Eric Collins: August 8, 1973.

Unknown Speaker: Is that in your reply brief?

Mr. W. Eric Collins: Yes, Your Honor.

Chief Justice Warren E. Burger: You may proceed.

Mr. W. Eric Collins: Thank you, Your Honor.

Chief Justice Warren E. Burger: What’s the subject now?

Mr. W. Eric Collins: Your Honor, on this action under 42 U.S.C 1983, the Federal Civil Rights Act was brought as a class action by two California prison inmates, a Mr. Martinez, who has since escaped and is still at large, and to Mr. Earle (ph) who is the representative of the class of all California inmates.

It’s originally alleged four class or general actions and one claimed for individual relief.

Pursuant to 28 U.S.C. 2281, three-judge federal panel, considered the general causes.

One of these causes involved registered mail and by a voluntary action on the part of the Director of the Correctional System, who was then and still is in the process of revising these various regulations.

This aspect of the postal system was made available to inmates and that mooted the question.

There was a second cause that involved confidential mail from inmates to attorneys.

This too, was mooted by the action of the California Supreme Court which in, In re 7, I beg your pardon, in, In re Jordan which is cited in the brief interpreted California Penal Code Section 2600 to find such a California statutory right in the inmates that supported federal question.

The third individual claim was brought by Mr. Martinez and this ultimately was mooted out.

So, we are then left with two general causes.

The first was an attacked on the First and Fourteenth Amendment on four California Correctional Regulations having to do directly or indirectly with the inmates’ mail, inmates personal or inmates’ social mail.

And the second cause was an attack under the Fifth and Fourteenth Amendment on access to the courts, insofar as California controlled confidential interviews between inmates and their attorneys and assistance too.

All these regulations by the decisions of the three-judge Federal Court where found to be undeclared, unconstitutional insofar as they applied to mail or restricted access to the courts.

Their enforcement was enjoined and we appealed.

In addition, the Director was ordered to submit new regulations in accordance with the finding of facts and the conclusions of law of the District Court, thus substantive.

And the new regulations were ultimately approved on August 1, 1973, and they are now in effect in California.

Justice William H. Rehnquist: No stay was sought while during the pendency of the appeal on update?

Mr. W. Eric Collins: I beg your pardon, sir.

Justice William H. Rehnquist: The California didn’t see case stay of the Court’s judgment pending its appeal here?

Mr. W. Eric Collins: Yes, Your Honor.

We did.

Justice William H. Rehnquist: And you were unsuccessful?

Mr. W. Eric Collins: We were unsuccessful in that endeavor.

Justice Byron R. White: Does the -- is the state willing to have a new regulations continue in effect?

Mr. W. Eric Collins: No, Your Honor.

Justice Byron R. White: You want to revert to the old ones?

Mr. W. Eric Collins: Yes, Your Honor.

We wish it right to follow what we conceive to be correct in the logical concepts.

Perhaps our first point is that the appeal is properly before this Court.

We rely upon the statute 28 U.S.C. 1253.

This was in the words of the statute an interlocutory or final injunction of a three-judge federal panel.

Now, in the Brown Shoe case, that’s Brown Shoe v. United States, there, a merger between two corporations was held to be in violation of the Clayton Antitrust Act as a lessening of competition.

On appeal, it was urged but the judgment was not final because the District Court retained jurisdiction in order to approve the plan of separation of these corporations.

Unknown Speaker: Excuse me Mr. -- is there any question raise in jurisdiction?

Mr. W. Eric Collins: Yes, Your Honor.

The appellants, I beg your pardon, appellees --

Unknown Speaker: lee?

Mr. W. Eric Collins: -- appears to raise these questions, as to the pre-maturity.

However, I will move quickly on and state this.

We believe, we have finding of fact and conclusions of law, a declaration of unconstitutionality and injunction.

We think, we can probably appeal.

However, we submit to you that the three-judge Federal Court should have abstained.

Abstention we submit is appropriate and peculiarly appropriate was not only are the regulations challenged and undertook have not been interpreted by the State’s highest court in our case of California Supreme Court.

It is particularly appropriate where there is another and separate state statute which if fully interpreted would provide us separate and distinct state ground which would moot the federal question.

We assert and we submit to you that that is our situation.

We do have a statute that is California Penal Code Section 2600.

Now in the Railroad Commission case, that’s Railroad Commission v. Pullman and in the Reetz v. Bozanich case.

That is the Alaskan Constitutional case.

In those, it was the interpretation of a either a state statute or a state constitution and not the regulation under attack which fully interpreted would have mooted federal question and this Court ordered abstention.

Justice Thurgood Marshall: This case was brought under a federal statute, was it not?

Mr. W. Eric Collins: This case was indeed, Your Honor, brought under the federal civil rights.

Justice Thurgood Marshall: Well, any of the cases you cited brought under that statute?

Mr. W. Eric Collins: Not under the Federal Civil Rights Act, Your Honor, no.

However, if any, if under the federal constitutional right, I beg your pardon, the Federal Civil Rights Act, a constitutional right is asserted as it must be pursuant to Cooper v. Pate.

Then if there is a state statute which will grant that right --

Unknown Speaker: But on the abstention?

Do you have an abstention case involving the Civil Rights Act?

Mr. W. Eric Collins: Offhand, no, Your Honor, I have nothing a specific United States Supreme Court which case to which I can refer.

But I do suggest to you that no matter what act is being enforced.

If it is a reasonable for this Court to find a state statute which would avoid the federal question then it should order its law of federal courts to extend.

Now, in the cases I’ve seen we do have a statute.

It’s California Penal Code 2600 and it is cited in our brief of course.

But I’d like to read this one little Section which is follows, “Pursuant to the provision of this section, prison authorities shall have the authority to exclude obscene publications or writings, and mail containing information where, how, and from which such matter may be obtained, and any matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence, and any matter concerning gambling or a lottery.”

Now, this we say is the limit of the California authority to exclude.

In, In re Harrell at 2 Cal. 3d 675, the California Supreme Court held that this statute, the one I just cited was in fact the California Inmates Bill of Rights and that the concept to civil death had been abandoned in the State of California.

We submit, it could be fairly argued and fairly interpreted, although, I’d be frank with you, it will be my duty as representing the Director to argue to the contrary in the appropriate state court.

But nevertheless, it would be fair to argue that the only exclusion authority of the California Director is contained in the statute.

Now, as opposed to this in their brief, appellee’s argue that because a -- California set those Section 1419 specifically and for the first time put end to Section 2600, the right of inmates to send social mail.

That therefore, there is no right statutorily in those inmates to send social mail.

This may well be but we point out that in that same bill which incidentally, never became law, but in that same bill there was an amendment which provided that the California authority, the California Correctional Authority showed for the first time have specific authority to excluded writings on the grounds they would tend to incite and I quote, “disobedience of prison rules.”

Therefore, we can argue on parity with the appellees that absence such specific authority there is no authority.

In short, we feel that the California Supreme Court could fairly and easily and contrary to the position that we would take in that court, hold there was indeed a California statutory right in inmates, and that like the Director only had the power to exclude those matters specifically referred to in California Penal Code 2600.

Justice Thurgood Marshall: But you don’t want keep these new regulations in them?

Mr. W. Eric Collins: No, Your Honor.

We do not want the new regulations.

Justice Thurgood Marshall: Well, how do you -- what’s the difference between the two?

You said, you understand since the Supreme Court could not (Inaudible)?

Mr. W. Eric Collins: They might.

We would argue seriously they should not but they might.

We have argued unsuccessfully; believe me, in our California Supreme Court before on prison regulations.

Justice Thurgood Marshall: Oh, I thought you were arguing that it was a just mistake with me by going to Federal Court, you shouldn’t be going to state court but California agreed they were wrong.

I misunderstood you, I guess.

Mr. W. Eric Collins: I see, Your Honor.

May I then restate?

My argument is this, a reasonable and valid argument could be made to the California Supreme Court, that all these regulations, this act what might be called exclusory regulations presently under attacked are without authority and therefore, exactly like in the Railroad Commission v. Pullman case where there are ultra various acts.

Justice Thurgood Marshall: That case was not under a specific statute which gave a federal cause of action which this permits.

Mr. W. Eric Collins: That is correct Your Honor.

And --

Justice Thurgood Marshall: And I assume you will oppose the Supreme Court of California?

Mr. W. Eric Collins: Yes, I would.

Justice Thurgood Marshall: Just as vigorously as you opposed with here?

Mr. W. Eric Collins: Just as vigorously, Your Honor as here I am saying it is a reasonable argument.

Your Honor, I’d like to address myself to this substantive questions and that involves the actual regulations.

Now, the forums involved the mail and they are very brief as follows.

Rule 1205 are all in the briefs that are before you and this had to do, I beg your pardon Your Honor -- with 1205 which had to do with contraband and that is the any writings and I’ll admit some things which are inflammatory expressing inflammatory political, racial, religious or other beliefs.

And also is subsection (f) of that same rule which includes writings which in the judgment of the warden or superintendent might tend to subvert prison order and discipline.

In addition, there is an actual mail regulation which is -- was also attack which said that the inmate might not send or receive letters that pertain to criminal activities.

This too, also contained this phrase “that are lewd, obscene, or defamatory and contain prison gossip or discussion of other inmates” and this aspect too is attacked.

And finally, inmate behavior, which prohibited or attempted to deter those who agitate, unduly complain, magnify grievances, or behave in any way which might lead to violence.

It is about these regulations that we are talking today.

Now, we do concede and agree that certain specific federal constitutional rights do indeed follow an inmate inside the prison involved.

These include for example, the right of access to the courts, the right now to suffer cruel and unusual punishment, and indeed perhaps the right to exercise religion.

But we ask this question and that is, “Do the First Amendment rights, as we popularly understand them, that is the right communicate and receive ideas and to assemble for the purposes of doing so, does these rights follow the inmate within the prison environment?

Our first position is that these do not and we say was the Fifth Circuit rule in the Frye v. Henderson, again it’s cited in our brief.

That social mail is not a federal constitutional right but is a matter of prison administration.

Now, we say this realizing that in that event there can be no federal burden upon us to justify the regulations if there is no underlying federal right.

And we say because, we believe that the underpinning of those First Amendment rights does not exist.

Justice William O. Douglas: Because they’re in prison?

Mr. W. Eric Collins: No, Your Honor.

Not because they are in prison, although, that is the resultant situation but for this reason.

As we understand it, the basic underpinning of these rights on which I think it’s Judge Learned Hand said, “if we stake our all in the proposition that in the free society, it is best to expose people to a free market place of ideas and our fundamental belief is that from this clash of beliefs good, bad, and indifferent from this exposure, that ultimately long term such a free society will only choose, or will choose ultimately beliefs which will improve in our wellness, increase or enlightenment and protect the very freedoms that permit them to choose.”

Put another way, perhaps we might say that the highest aspect of social wisdom is the long-term collective judgment to free people.

Justice Thurgood Marshall: So, Mr. Collins your answer to Mr. Justice Douglas’ start -- question is “yes?”

Mr. W. Eric Collins: Your Honor, the people, the persons who are -- had been convicted and imprisoned have selected themselves out of such a free society.

Justice Thurgood Marshall: When they did do it?

Mr. W. Eric Collins: By the acts.

Justice Thurgood Marshall: When they commit the crime?

Mr. W. Eric Collins: Yes, Your Honor.

Justice Thurgood Marshall: Well, he could still write letters?

Mr. W. Eric Collins: Yes, indeed Your Honor.

Justice Thurgood Marshall: Couldn’t he?

Mr. W. Eric Collins: Of course, he may write letters.

Justice Thurgood Marshall: And you couldn’t stop him, could you?

Mr. W. Eric Collins: Yes, Your Honor.

Justice Thurgood Marshall: You could?

Mr. W. Eric Collins: It would depend on the kind of mail.

Justice Thurgood Marshall: You mean a man is arrested and you can stop him from writing letters?

Mr. W. Eric Collins: Oh, no, Your Honor.

No.

Justice Thurgood Marshall: But when did the state first get to write to stop him from writing a letter?

Mr. W. Eric Collins: When it did first get the right?

Your Honor, I would submit -- may I approach that backwards and say, it certainly true that it has a right to stop the writing of letters.

And of course, I'm excluding such letters as access to the courts and the like.

Justice Thurgood Marshall: Only because you have to.

Mr. W. Eric Collins: And letters shall we say, to the California legislators.

Again, that’s a California statutory right and other similar rights.

But when that person is finally imprisoned within this controlled environment, it is precisely that.

Justice Thurgood Marshall: And then the answer is yes?

Mr. W. Eric Collins: Yes.

The answer is yes.

The answer is --

Justice Thurgood Marshall: And to the next question is why?

Mr. W. Eric Collins: Because Your Honor, and this is why I digress, perhaps.

Justice Thurgood Marshall: And because he gave it up when he committed the crime?

Mr. W. Eric Collins: No.

Not -- yes, yes that’s true.

Justice Thurgood Marshall: He gave up his First Amendment rights when he committed a crime?

Mr. W. Eric Collins: He gave up this particular First Amendment rights when he committed a crime because the underpinning disappeared.

You see, I'm suggesting this.

Justice Thurgood Marshall: He also gave up his right to a trial?

Mr. W. Eric Collins: No, Your Honor.

Justice Thurgood Marshall: But why do you pick out just one right he loses?

Mr. W. Eric Collins: Because --

Justice Thurgood Marshall: Did he give up his right to vote?

Mr. W. Eric Collins: No, Your Honor.

Justice Thurgood Marshall: But he only gave up his right to write a letter?

Mr. W. Eric Collins: Yes, Your Honor.

And the reason is this, the basic underpinning for the right is, I believe as I have stated but ultimately in a free society this collective judgment will be made correctly.

Chief Justice Warren E. Burger: But I suppose he gave up his right to First Amendment right to free assembly at the time of his conviction not at the very time he committed the crime?

Mr. W. Eric Collins: Yes, Your Honor.

Chief Justice Warren E. Burger: At the time of his conviction, he could no longer freely attend any meetings he wanted to.

I suspect there wouldn’t be any question about that because he is put in a cell every night.

Mr. W. Eric Collins: That is true Your Honor.

It is merely a concomitant, the same thing.

And we believe that these people when they have got into that situation will not ultimately choose correctly as we do for a free society.

Unknown Speaker: Since you wrote your brief, this rather, luminous, credible reports, using the reports come down leading with this copy; I wonder if we can’t look at it?

Mr. W. Eric Collins: No, I regret not Your Honor.

Unknown Speaker: Because it seems to be larger more than your brief?

Mr. W. Eric Collins: My point is this --

Unknown Speaker: It deals only with recommendations.

Mr. W. Eric Collins: Precisely, Your Honor and this is why I say that we are not talking about constitutional right.

It may well be a mis --

Unknown Speaker: The appellee is talking about constitutional rights?

Mr. W. Eric Collins: Yes, Your Honor.

The constitutional right is when this Court delineates it.

We may well and I notice my white light on and I’m anxious to get to one of the point, Your Honor.

We may well have different penological concepts and it may well be that the appellee is right.

But such is not the question before this Court.

The question is “Are we federally compelled to follow a particular recommendation?”

Unknown Speaker: Well, you have it.

This case involves one bold fact, I assume, that is that the prison authorities here sends their letters, outgoing letters?

Mr. W. Eric Collins: They do indeed.

They do and they should.

Unknown Speaker: Under what theory?

Mr. W. Eric Collins: Under the theory that they are controlling and guiding the environment of the person committed to their care.

Unknown Speaker: But some of the censorship apparently relates to criticism with the prison authorities?

Mr. W. Eric Collins: Very well, Your Honor.

The argument is made that this is a stifling of criticism.

We say that’s not true.

First, there is ample way in which criticisms can be made in a totally confidential and protected manner.

Unknown Speaker: They didn’t have a right?

Mr. W. Eric Collins: A California statutory right to do so under Section 2600.

We merely say this, that when it comes to social mails as opposed to this confidential mail, no, there is not such Your Honor.

Not a federal constitutional right.

Your Honor, I have not reach the last point, I like to touch very quickly on this.

We have no objection to such to paraprofessionals to the contrary.

But we ask, it is federal right or just under federal compulsion that California must admit paraprofessionals with the privileges of attorneys to California prisons especially, when that class has not yet been delineated.

Chief Justice Warren E. Burger: You are addressing yourself to the fact that it isn’t an identifiable or otherwise regulated group?

Mr. W. Eric Collins: As yet, not.

Our basic concept is this, the person who wishes to take part in this relaxation of security and the burden that places on to make this, must have something more to lose than simply the sanctions of criminal law.

We want them to be subject to professional discipline whether standards of conduct are higher or the standard to proof is lower and were impartial and this person appears will judge of their conduct.

Your Honor, I believe I’ve only two minutes at most left.

I like to reserve that two minutes for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Turner.

Argument of William Bennett Turner

Mr. William Bennett Turner: Mr. Chief Justice and may it please the Court.

The state has argued that the District Court should have abstained in this case on one issue only that of mail censorship rules but there is no basis on which that issue could be decided on state law grounds.

There is no uncertainty whatever about the whether these rules apply to prisoners in California, they do.

There is no uncertainty about whether they apply to all letters from prisoners to their family or friends, they do.

And there is no uncertainty that these rules are designed to give the censoring guards absolute open-ended unchecked censorship power as to their contents.

These rules were authoritatively construed by Director Procunier in his testimony and deposition in this case to permit the censoring guard to fill in the blank to find a reason that he would think would be appropriate for rejecting any particular letter.

Director Procunier testified that that was permissible under the rules involved in this case.

Now under California law, under Section 5058 of the California Penal Code, the Director has complete unreviewable authority to make and change rules and regulations for the administration of the prison.

There is no restriction on that, no state statute limits his discretion in any way.

Therefore, there is no state law basis for deciding the issue of mail censorship.

Unknown Speaker: Mr. Turner do you feel there is some right of censorship on the part of the prison authorities?

Mr. William Bennett Turner: There is no contention in this case Your Honor that the prison officials may not read every piece of mail going in and out of the prison involving family and friends of prisoners.

Even though, that practice has been abandoned by a large number of prison systems around the country and recommended by the National Advisory Commission on Criminal Justice Standards and Goals.

There’s no contention here that they might not read the mail.

The contention here is limited to censoring the contents of the mail, rejecting letters, and punishing prisoners for what they say in their letters.

Unknown Speaker: Now, let’s see if I have you done correctly understood.

I take it you are conceding at least for purposes of this case.

They have the right to read.

Do I understand you to say that they have the right not to censor in any respect?

Mr. William Bennett Turner: I'm not sure I follow you, Your Honor.

Unknown Speaker: Well, I'm asking you, is this that your position that they may read but may not censor?

Mr. William Bennett Turner: We are supporting the order of the District Court which permits the reading of all social mail and rules that were approved finally by the District Court on August the 1st of this year permit the censoring of specific contents that are deemed to present some danger to prison security or some other penal interest.

And we are here to support --

Unknown Speaker: And might you concede this is proper then for purposes of this case?

Mr. William Bennett Turner: For purpose of this case, yes Your Honor.

The appellants have raised for the first time in this Court an issue regarding Section 2600 subsection 4 of the Penal Code and they suggest that that statute might have something to do with the resolution of this case.

But the statute cannot be fairly interpreted to govern the issues presented here.

Nobody has ever before suggested that it had anything to do with mail censorship.

Chief Justice Warren E. Burger: Let me backup a little on the abstention issue if I may with you.

Are you saying that to the absent to any California statute defining the authority of the prison director or guidelines that state court could be presented with this question would have to do exactly what a Federal Court does?

Mr. William Bennett Turner: That’s right.

Chief Justice Warren E. Burger: By the Federal Constitution?

Mr. William Bennett Turner: That’s right.

Chief Justice Warren E. Burger: Or, what about the California Constitution?

Mr. William Bennett Turner: It could apply the California Constitution but the California court say that under the California equivalent of the First Amendment, the federal are precedence on constitutionality would govern.

Chief Justice Warren E. Burger: I take it you're not making any claim that prisoners have full First Amendment rights?

Mr. William Bennett Turner: No.

Chief Justice Warren E. Burger: They don’t have the right of assembly in the sense that a person -- a free person has, do they?

Mr. William Bennett Turner: No, there's no contention of that --

Chief Justice Warren E. Burger: They can’t call a meeting and make the Director open up all the cells and gather out in the yard for a meeting.

Mr. William Bennett Turner: Certainly not.

There's no right of assembly involved in this case at all.

It’s only the right of expression.

Chief Justice Warren E. Burger: Well, are you just picking out as one very important right of -- First Amendment right which the people on the outside have and you concede when they go in, they don’t have it?

Mr. William Bennett Turner: We do, Your Honor.

Chief Justice Warren E. Burger: Then the question of what other First Amendment rights they’ve lost is what’s at issue here?

Mr. William Bennett Turner: There are really three kinds of First Amendment rights involved here.

One is the right of free expression; another is the right of association with family and friends on the outside; and finally, there's the right to petition for redress of grievances.

Chief Justice Warren E. Burger: How do deal them if the right of association with family and friends?

Do you flush that up a little?

Mr. William Bennett Turner: Well, this is the only link the many prisoners have to the outside world at all.

Chief Justice Warren E. Burger: Yes, I know but how far do you claim they are entitled to that right of association?

Mr. William Bennett Turner: Well, only to the extent that they are allowed to maintain communicating links --

Chief Justice Warren E. Burger: Do prisoners have visitors at the prison?

Mr. William Bennett Turner: Well, that’s not involved in this case.

Chief Justice Warren E. Burger: But the -- I'm not sure what you mean now when you are saying of the right of free association to what extent?

Mr. William Bennett Turner: Only to the extent of correspondents with the family and friends in the community.

Chief Justice Warren E. Burger: I wouldn’t have thought of that as association when you're also talking about free expression by letters?

Mr. William Bennett Turner: Well, I think expression is the basic part of the First Amendment.

But there is also the right to petition for redress of grievances.

I invite the Court’s attention to the letters that were rejected by the prison administrator for some prisoners there.

They are exhibits to the deposition of few amorphous and in those letters, the prisoners were saying to their father or mother, “please get me a lawyer to deal with this problem that I have.”

And that’s the only way that they can get to a lawyer is to write to their family to go out and hire them a lawyer.

So, the right to petition for redress of grievances is also involved even in the social mail context.

Unknown Speaker: What you really are speaking to some extent of the rights of visitation, are you not?

Mr. William Bennett Turner: It’s not involved at all in this case.

Unknown Speaker: Well, aren’t you talking about paralegal visitations?

Mr. William Bennett Turner: Oh, that’s a separate issue.

That would be solely for the purpose of serving as an investigator for the lawyer.

Unknown Speaker: You concede that they -- that a prison might have reasonable regulations as to hours of visitation?

Mr. William Bennett Turner: Yes, indeed.

Unknown Speaker: Numbers of visitors?

Mr. William Bennett Turner: No doubt about it.

The -- getting back to Section 2600 subsection 4, in order to have anything to do with mail censorship, this statute would have to be turned on to its head.

I invite the Court’s attention to the statute which is reproduced as exhibit B to the brief for appellants.

The structure of the statute is as follows.

If a person is sentence to imprisonment in California, all of his civil rights are thereby suspended and he has none.

That’s what the statute provides.

And then in the third paragraph the statute states that this section shall not be construed so as to deprive such person of the following civil rights and then four specific civil rights are listed.

And the fourth one, is the right to purchase, receive, and read any and in all newspapers, periodicals, and books accepted by the post office.

Then, there's a qualification on that right giving prison authorities the power to exclude obscene publications or writings and this is the first mention of mail.

And mail containing information concerning where, how, or from whom such matter referring to obscene publications and writings may be obtained.

Now, the statute, thus, takes away all civil rights except for specific ones and this mention of mail is only a qualification an exception to an exception if you will.

And it just doesn’t confer a general right in the prisoner not to have his mail censored.

Even if the statute were applicable, even if the structure of the statute were not as it is, the statute deals only with incoming matter and not at all with outgoing matter.

It gives the prison officials the right to exclude certain things from the prison.

But it doesn’t deal with things that are going out and the issues in this case involve what the prisoners are writing outside of the prison.

Basically, it is the unduly complaining, the magnifying grievances kind of things.

Those applied to the prisoners, letters going out and not going in.

Therefore, even if the statute could be interpreted the way the Deputy Attorney General would have it read, it could only apply to a very small part of this case and would not significantly alter the constitutional issue.

The Supreme Court of California in the Harold decision mention by counsel for appellant, did interpret this subsection of the statute, that Court reads the statute the same way we do.

In short, the issue of mail censorship could only be decided on federal constitutional grounds and there’s no basis for sending the prisoners into the state court system.

Turning to the substantive issue on mail censorship, it’s essential to focus on exactly what the District Court did and what it didn’t do.

The regulations that the Court invalidated have to be compared with the regulations that they finally approve on August the 1st of this year under which the state has been operating for several months.

The new rules which were approved by the District Court are printed in the supplement to the appendix at pages 195 and 196.

And these rules give the prison officials very, very broad authority to censor mail incoming and outgoing for a whole variety of reasons.

Chief Justice Warren E. Burger: Where are we at now?

What page of the supplement?

Mr. William Bennett Turner: The supplement to the appendix pages 195 and 196, Your Honor.

If there is something that the state need in administering prisoners and prisoner mail that isn’t in these rules, the state hasn’t said what it is.

It didn’t tell the District Court what it is.

It hasn’t told this Court what it is.

The -- when you compare the rules given final approval by the District Court with the ones that they invalidated.

They find it did not affect of what the court below did was to invalidate the following.

Prohibiting prisoners from writing letters in which they “unduly complain” in which they magnify grievances, and which they express inflammatory, political, or other views or beliefs which are defamatory but that does not mean libelous according to the testimony of one of the mailroom officers that man -- that prisoner belittling the staff or criticizing policy.

And finally, they catch all letters that are “otherwise inappropriate.”

This is the one that gives then censoring guards the right to fill in the blank on the checklist with whatever reason he deems appropriate.

And of course, the entire letter is rejected if any part is objectionable.

The rest of the rules that were involved beginning of this case survived intact in substance, and the rules approved finally by the District Court and the state has not complained that any of this new rules lead any of their interest unprotected.

Unknown Speaker: Now, let me see if I understand that.

Looking at the old rules, these are the ones at exhibit C, are they not?

Mr. William Bennett Turner: Yes.

Unknown Speaker: To the appellants’ brief.

Mr. William Bennett Turner: Yes.

Unknown Speaker: I gather that the one on page roman numeral VI, right the Rule 2402 (8) that is one that did not survive, is that right?

Mr. William Bennett Turner: Well, parts of that did.

The obscenity --

Unknown Speaker: Have you tried to correlate anywhere in your brief?

Mr. William Bennett Turner: No, they would have to be compared and it’s not word for word.

It is in substance all of for example obscenity --

Unknown Speaker: Well, would you repeat it again what you say survived and what went out?

Mr. William Bennett Turner: Well, what went out were the provisions referring to exhibit C to the brief of appellants in Rule 1201, the unduly complaining and magnifying grievances provisions came out.

Chief Justice Warren E. Burger: Now, with the one I have -- that’s the beginning of C, 1201.

Unknown Speaker: Yes.

Mr. William Bennett Turner: Yes.

Chief Justice Warren E. Burger: Alright.

Unknown Speaker: Duly complain, magnify grievances.

Mr. William Bennett Turner: And then in 1205 --

Unknown Speaker: May I ask, well that means that somewhere we have something about do not agitate --

Mr. William Bennett Turner: Or behave anywhere which might lead to violence.

That -- the rules were enjoined of course only insofar as they applied to mail.

Unknown Speaker: Yes, that's wrong to get but do not agitate when they agitate with mail.

But that still survive, is it?

Mr. William Bennett Turner: Well, if you look at the rule finally approved it would ban letters containing plans for activities in violation of institutional rules and it’s in violation of institution rules to agitate.

So, I think that would still survive.

Unknown Speaker: Now, what's the next?

What about 1205?

Mr. William Bennett Turner: 1205 under the contraband rule insofar as it applies to mail at all.

Unknown Speaker: Yes.

Mr. William Bennett Turner: Writings, expressing inflammatory, political, racial, religious other views or beliefs when not in the immediate possession of the originator.

Unknown Speaker: They went out?

That went out?

Mr. William Bennett Turner: Well, that went out insofar as it applies to mail.

Unknown Speaker: Yes.

Mr. William Bennett Turner: Then, in 2402 (8), on the next page.

Unknown Speaker: Well, may I ask then what about (f)?

1205 (f)?

Mr. William Bennett Turner: I think the substance of (f) has survived.

Unknown Speaker: Has survived.

Mr. William Bennett Turner: And the first paragraph on the next page.

Unknown Speaker: Right.

Mr. William Bennett Turner: But in 2402 (8) --

Unknown Speaker: Right.

Mr. William Bennett Turner: Defamatory went out as well as or are otherwise inappropriate.

Unknown Speaker: Is that it?

Mr. William Bennett Turner: That’s it.

Unknown Speaker: What does foreign matter mean in 2402?

If someone writes in Spanish, is that the one?

Mr. William Bennett Turner: I don’t think that’s meant to be words Your Honor.

I think that substances maybe -- they maybe getting it drugs or something of that matter.

These rules unduly complaining and magnifying grievances and so on are relics of the non-distinguished past in prison administration and they are not needed to run any prison.

As the states that have done a way with reading mail all together shall and as the new report of the National Advisory Commission on Criminal Justice Standards and Goals shows, indeed the state has never said in this case that it has any interest at all in enforcing these particular rules.

Justice William H. Rehnquist: The 1201, I gather by its terms doesn’t deal in so many words with mail.

It is just kind of a general kind of behavior, is it?

Mr. William Bennett Turner: That’s correct Your Honor.

But it does apply to letters.

We specifically asked in a request for admissions, does this apply to letters and the answer was yes.

That’s in the record.

And certainly the testimony of the censoring guard was that they frequently used the unduly complaining and magnifying grievances provisions to censor criticism of them or their policies.

Chief Justice Warren E. Burger: Or it could only be the last sentence of trouble when the prison involved there, is that not so?

Mr. William Bennett Turner: That’s correct.

That would be only the sentence that the --

Chief Justice Warren E. Burger: That’s the part that’s now superseded?

Mr. William Bennett Turner: Yes.

Unknown Speaker: Well, that is unduly complaining of magnified grievances of that last sentence?

Mr. William Bennett Turner: That’s correct.

What we’re dealing here -- dealing with here is just expression, it is not obscenity, not libel, not fighting words, we’re not talking about conduct.

We’re not talking demonstrations or circulating anything within the prison.

Moreover, this is expression contained in letters that are address to correspondents’ people who are approved by the Department of Corrections.

We believe that the District Court’s conclusion on the mail censorship rules was clearly correct and should be affirmed.

Unknown Speaker: If I understand that statements you just made.

The part when you say, people who are through.

Does that mean the prisoner must provide a list of people to whom he’d like to write a letter or letters and that list must be approved before he may write to any of those people?

Mr. William Bennett Turner: That’s correct.

Unknown Speaker: You make no objections of this?

Mr. William Bennett Turner: Not in this case.

Turning --

Unknown Speaker: Did you object to copying?

Mr. William Bennett Turner: Copying of mail?

Yes, we did.

Unknown Speaker: And was that not the --

Mr. William Bennett Turner: No, I'm afraid it wasn’t referring to page 198 of the supplement to the appendix under the rules finally approved by the District Court.

The officials still have the right to place in a prisoner’s file.

Not only matters that are in violation of the rules but also anything they think is “relevant to assessment of the inmate’s rehabilitation” or just essentially could mean anything.

Unknown Speaker: Well, do you think they have a right to put into a -- to copy and keep every letters written?

Mr. William Bennett Turner: Well, we vigorously argued in the District Court that they didn’t --

Unknown Speaker: Well, what do you think happen with under the rules as approved, may the prison be that enough?

Mr. William Bennett Turner: Yes, they may.

Turning to the problem of investigators working for lawyers, once again it is essential to focus on exactly what the District Court did and what it didn’t do.

Compare the former rule that was invalidated with the rules that were finally approved.

Chief Justice Warren E. Burger: Now, let us find each one as you are going along.

Mr. William Bennett Turner: Alright.

The --

Chief Justice Warren E. Burger: We got the roman page VI at the end of the appellant’s brief for the old rule.

Mr. William Bennett Turner: That’s the old rule.

Chief Justice Warren E. Burger: Now, where do we find the new one?

Mr. William Bennett Turner: The new rule is at page -- it begins on 198 of the supplement to the appendix.

Chief Justice Warren E. Burger: That’s B?

Is that right?

Mr. William Bennett Turner: Yes, B, investigators.

Chief Justice Warren E. Burger: Yes.

Mr. William Bennett Turner: Now, the former rule was an absolute prohibition against attorneys using either law students or paraprofessionals for the purpose of interviewing prisoners whom they were representing or considering whether to represent.

This was to true regardless of who the prisoner was, regardless of who the lawyer was, regardless of who the investigator was, regardless of the kind of case, or the need to use an investigator regardless of any other possibly relevant factor.

Now, after the initial decision of the District Court, the Department of Corrections voluntarily opened the class of investigators to permit law students who’ve been certified by the State Bar of California to serve as investigators.

The only addition to that made by the District Court in its final order is to authorize the use of paraprofessional persons, who have been certified as well by the State Bar of California.

As of this time, there is no procedure and no certification by the State Bar for paraprofessionals.

So, the District Court has not ordered the department to do anything that isn’t doing voluntarily already.

Justice William H. Rehnquist: When you say voluntarily, Mr. Turner, do you mean otherwise and under the compulsion of the District Court’s judgment?

Mr. William Bennett Turner: That’s right.

They were ordered to submit regulations that would permit the use of paraprofessionals but they began voluntarily allowing law students in before they were ever ordered to do so, months before they were ever ordered to do so.

Justice William H. Rehnquist: Was it before or after the rendition of the District Court opinion that they?

Mr. William Bennett Turner: After the opinion and while new regulations were being worked out.

The former rule that barred all use of paraprofessional assistance to lawyers was in fact a serious obstacle to obtaining representation for indigent prisoners.

These prisoners can’t afford either a lawyer or the services of the state license private detective.

Chief Justice Warren E. Burger: Well, but District Court’s further was reference to these paraprofessionals is not self-executing, is it? You indicated that its paraprofessional other than the law students certified paraprofessionals certified by the State Bar and you say they haven’t certified any yet?

Mr. William Bennett Turner: That’s right.

Chief Justice Warren E. Burger: And if they don’t certify any of them that remain some rhetoric?

Mr. William Bennett Turner: That’s right, an empty promise.

Chief Justice Warren E. Burger: Unless they mandamus the State Bar?

Mr. William Bennett Turner: Well, the State Bar of California has recommended legislation just last summer because they think it’s important to start paraprofessional use in all aspects in the practice of law to enhance the quality of legal services and expand the number of people that services can be rendered to.

They want to do that through paraprofessional.

So, I think they will get to it.

Unknown Speaker: Your State Bar that has reference to the Integrated Bar, does it?

Mr. William Bennett Turner: Yes.

Unknown Speaker: And another it says there are other equivalent legal professional body, would that be some voluntary Bar Association?

Mr. William Bennett Turner: Yes.

I'm not sure what is meant by that.

Unknown Speaker: You do have in California some voluntary Bar Association?

Mr. William Bennett Turner: Local Bar Associations.

Unknown Speaker: Now, what’s the constitutional right (Inaudible)?

Mr. William Bennett Turner: The right of access to the courts -- effective access to the courts.

It’s the same right that was involved in Johnson.

Unknown Speaker: Do you say the state has no business saying they wanted to guarantee that access to people to have a certain agreed qualification?

Mr. William Bennett Turner: The state does have an interest but that interest is certainly adequately protected --

Unknown Speaker: Do you disagree with where they (Inaudible)?

Mr. William Bennett Turner: Well, as in Johnson against Avery was --

Unknown Speaker: Well, isn’t that right?

Do you think that the state require too much qualifications for the people?

Mr. William Bennett Turner: Well, what it did was exclude a lot of people who could be very, very helpful.

Unknown Speaker: Well, they still exclude a lot of people?

Mr. William Bennett Turner: And provided they -- they certainly do.

Unknown Speaker: Well, I thought Mr. Turner you're not here cross-appealing or anything?

Mr. William Bennett Turner: No.

Unknown Speaker: You're just defending this order with its deficiencies whatever they may be at?

Mr. William Bennett Turner: That’s correct.

Unknown Speaker: Oh, yes, but if you were the plaintiffs?

Mr. William Bennett Turner: Yes.

Unknown Speaker: And you attack this rule on the ground that this -- upon the grounds of the rules unconstitutional because it restricted access to the board, I take it?

Mr. William Bennett Turner: That’s correct.

Unknown Speaker: And you agree access to the courts can be restricted to people of satisfactory qualification?

Mr. William Bennett Turner: Well, I wouldn’t put it that way.

It --

Unknown Speaker: Well, if you say that the state must have allow access through people with no qualifications?

Mr. William Bennett Turner: Certainly not.

But we are not --

Unknown Speaker: But then -- well, then you say with sufficient qualifications?

Mr. William Bennett Turner: Well, we are talking about two different things right here.

But the prisoners have a right of access to the courts through whatever means don’t involved any problems of prison security.

The State Bar of California can certainly promulgate the standards for professional conduct and the State Bar has --

Unknown Speaker: I’m talking about the prisoners.

May the prisoners say, we will certainly prevent the access and to the boards for prisoners they agreed they have a right but we insisted they be through people of satisfactory qualifications?

Mr. William Bennett Turner: Well, the question is what are satisfactory qualifications and --

Unknown Speaker: That’s right.

Mr. William Bennett Turner: In this case, the court below held that the state didn’t have any interest really in --

Unknown Speaker: It was a constitutional matter.

I think that District Court was perfectly competent to disagree within it?

This is with the prison authority as to what satisfactory qualifications were?

Mr. William Bennett Turner: Well, that’s because the prison authorities didn’t attempt to justify the exclusion of the people that the District Court ordered should be let in.

And the reason for the District Court’s order is because this rule made the difference in very many cases whether a lawyer -- whether a prisoner would have legal representation or not. In this very case, my co-counsel was requested by Federal District Judge to look into this case which had been filed pro se by the prisoner investigated and considered taking on uncompensated appointment.

When she tried to send a third year law student working closely under a supervision to see the prisoner and get the facts, he was barred by this very rule and he was transferred and it didn’t happen again.

That’s how this issue got in this case and took a good while to get this case prepared because of that rule.

But as the record show is in many other cases, the lawyers had been discouraged from getting involved at all with the representation of prisoners because of the remoteness of prisons.

They have to take days off from your office just to go get paper signed.

They can’t even send a messenger to get paper signed under this rule.

They have to go in person.

And that was a handicap in representing California prisoners.

Chief Justice Warren E. Burger: Well, it must be more than just getting the paper signed because that could be done by the mail, couldn’t it?

The way private finds.

Mr. William Bennett Turner: It could be done by mail if the documents did not have to be explained or show the prisoner what's in and so on.

Chief Justice Warren E. Burger: There must be some interview process involved in which the paraprofessional that you're talking about is going to engaged in some substantive discussion with the prisoners, isn’t that true?

Mr. William Bennett Turner: Yes.

It is the personal interview thing that is the most important but to show how far the rule goes it bars even going out to the prison there --

Chief Justice Warren E. Burger: The old rule?

Mr. William Bennett Turner: Under the old rule.

We submit that this aspect of the case is controlled by the Court’s decision in Johnson v. Avery where the Court struck down the jailhouse lawyer rule that prohibited prisoners from helping each other on legal work.

Certainly, if the state’s interest there, if there’s a burden on the state to justify banning jailhouse lawyers which was not met in Johnson versus Avery, it ought to be heavier burden of justification or you’re talking about people who are closely supervised and certified by attorneys.

There's no contention -- then no contention in this case that any harm would ever, would flow from the use State Bar Certified law students and paraprofessionals and for all these reasons if the Court has no further questions the judgment should be affirmed.

Justice Potter Stewart: Although, factually is it true, isn’t it?

In the various State of California that problems have developed that lawyers are brought into penitentiary.

A young man by the name of Bingham, I think he has never been seen since, a lawyer?

Mr. William Bennett Turner: I know what you're referring to. I suppose I have no personal knowledge of any of those events.

Justice Potter Stewart: I know.

As contrasted with what might go in and out by way of a prisoner petitioning the Court, Johnson -- the Johnson against Avery situation?

I mean it is real not an imaginary problem with which these regulations’ deal, is it not?

Mr. William Bennett Turner: Well, I think it is a real problem but the Attorney General has made a lot of the fact that these interviews will be confidential.

That’s a red herring because all interviews, all visits, social, and other in California are confidential but not monitored at all -- they’re visually monitored.

A guard looks at you while you talk to the prisoner but nobody is listening.

That’s even true with social visits.

And it would be true with the paraprofessionals as well.

Chief Justice Warren E. Burger: Very well.

Mr. Collins, you have only one minute left.

Rebuttal of W. Eric Collins

Mr. W. Eric Collins: Yes, Your Honor.

First, may I say, that counsel is under certain misapprehensions.

To answer Justice Rehnquist, it is true we did submit new regulation regarding law students but that was not done voluntarily.

It was done on the compulsion of the finding of fact in conclusions of law of the Court.

Second, it is -- he is mistaken when he says that we do not monitor any nonconfidential interviews.

That is not true.

We do and we reserve the right to do so in all nonconfidential interviews.

I agree counsel may be speaking from his personal experience but that we submit is not contrary.

Your Honor, we think --

Justice Thurgood Marshall: Do you think when a man talks to his lawyer, it’s monitored?

Mr. W. Eric Collins: No.

Not in any sense, Your Honor.

That is the point.

It is completely confidential.

That is confidential.

Justice Thurgood Marshall: And everything else is monitored?

Mr. W. Eric Collins: Anything else may be.

We do not normally and that counsel is correct.

In that statement we do not normally, but we do occasionally and we reserve the right to say to you.

Justice Thurgood Marshall: Don’t you say it was monitored.

Now, you said occasionally?

Mr. W. Eric Collins: Your Honor, let me --

Justice Thurgood Marshall: But does the person know when he is being monitored?

Mr. W. Eric Collins: No.

Unless it’s a confidential interview and then he knows he is not being monitored.

Chief Justice Warren E. Burger: By confidential, you mean oft an interview with his lawyer?

Mr. W. Eric Collins: All.

Chief Justice Warren E. Burger: Or his representative?

Mr. W. Eric Collins: Correct Your Honor.

Precisely.

Chief Justice Warren E. Burger: I think your time is up Mr. Collins.

Thank you gentlemen.

The case is submitted.