MONTANYE v. HAYMES

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Argument of Joel Lewittes

Chief Justice Warren E. Burger: We will hear arguments next in 74-520, Montanye and others against Haymes.

Mr. Lewittes, you may proceed whenever you are ready.

Mr. Joel Lewittes: Mr. Chief Justice and may it please the Court.

The issue presented today is whether the Due Process Clause requires that an inmate who was transferred within a state from one maximum security facility to another maximum security facility with no imposition of disciplinary penalties before the notice of the reasons for the transfer and an opportunity to be heard.

The underlying facts are as follows.

The respondent Haymes was incarcerated at Attica Correctional Facility in August of 1971, Attica being a Maximum Security Facility.

His conviction was for manslaughter in the first degree.

Attica is one of six maximum security facilities in the State of New York.

On June 9, 1972, the Respondent Haymes was transferred from Attica to Clinton which is another Maximum Security Facility.

Two days earlier, prison officials at Attica had confiscated and seized from Haymes a petition he was circulating on behalf of other inmates.

This document denominated by the respondent to be a petition was addressed to the District Court of the Western District of New York and entered a claim that the discharge of Haymes on that very day as a law assistant in the Law Library at the Attica Facility had already deprived 82 signatories of that petition of legal assistance.

In addition to that, the petition also complained of eight various attitudes of the Correctional Officers in-charge of the Law Library.

A few weeks later at the Clinton Facility, Haymes filed a Pro Se Complaint, returnable in the Western District of New York against various Attica Officials and he raised two claims in that complaint.

Number one, he claimed that the confiscation of the petition was entitled to damages for that in the amount of $1,500.00 compensatory damages and his second claim was various acts of retaliation, including the transfer, had been taken against him and he sought $1,500.00 punitive damages.

With regard to the general claim of retaliation, only one aspect was pursued by counsel in the District Court and that was the issue of transfer.

In the District Court, the Court held that with regard to the transfer issue it was dismissible and they did dismiss it, holding that even though it was alleged that the transfer was punishment, there was no allegation of harsher or substantially different treatments since he was transferred from one maximum security facility to another maximum security facility.

However, in the Second Circuit Court of Appeals, the Chief Judge Kaufman pointed out that simply all an inmate has to do was to claim or allege that the transfer was a punishment and that would entitle him to his day in Court, where he could prove the transfer was punitively motivated and that the consequences were onerous to him.

The Court did not in any way analyze the facts to determine whether or not there was indeed an underlined liberty or property interest involved.

The Court simply defined punishment as harsh treatment meted out to reform, to deter, or reprimand and suggested various consequences that flow from the transfer itself.

Number one, there was a claim, a hypothetical claim I should say, that was set forth in the opinion of the Second Circuit that he will be removed from his family.

The Clinton Facility is several hundred miles away from the Attica Facility from which he was transferred?

Unknown Speaker: But it could be just be the reverse, could it not?

Mr. Joel Lewittes: Yes, it certainly could have been.

He could have been obviously been placed in the Clinton Facility initially, at which point he would have been 350 miles so away from his family.

The Court, that is the Second Circuit Court of Appeals, also suggested that he suffered grievous loss in the sense that he would be removed from his friends in the prison.

The other suggestion was that there could possibly be a loss of property during the time of the transfer.

Justice William H. Rehnquist: Do you think that Second Circuit would have said he suffered a grievous loss if he had been moved from one cell block to another in the same prison, presumably he would have been moved away from some of his buddies there?

Mr. Joel Lewittes: It would seem that under the rational of the Second Circuit, the answer to that would be yes.

Justice John Paul Stevens: Is that because of the issue raised by the confiscation of the petition?

Is that why you say they treated it the same way?

Mr. Joel Lewittes: I say they have treated it the same way because the Court without analyzing whether or not there was a property interest or a liberty interest said that so long as the inmate subjectively feels that there was punishment involved, he is entitled to his day in Court.

It is clear in the hypothetical suggested by Mr. Justice Rehnquist that a movement from one cell to another cell may be subjectively on the mind of an inmate punishment, and therefore, would be entitled to his day in Court and he may even claim grievous loss and that his cell is not close to friends of his cell by reason of the movement to another cell.

So that was the reason for my affirmative answer.

Justice John Paul Stevens: Well, do you think they could tell an inmate that if you filed a petition in Court, he would be moved to another cell?

Would that be appropriate treatment in response to his exercising a right to his lawyer or something like that?

Mr. Joel Lewittes: I think that he could be moved from any cell within the --

Justice John Paul Stevens: No, the rule which said to prisoners, if you write to lawyer you will go to Cell Block A instead of Cell Block C?

Mr. Joel Lewittes: Now, if we indeed are talking about a rule --

Justice John Paul Stevens: Or a practice?

Mr. Joel Lewittes: -- or a practice, then it is possible it can be claimed at least that by virtue of this particular rule or regulation, he had an expectation that he would remain in that cell and it might be possible that it could be argued that there was perhaps created some sort of a liberty interest.

Justice John Paul Stevens: Well, is there a liberty interest in not being treated differently because of the fact that you file petitions or write letters to lawyers?

Mr. Joel Lewittes: I do not think it is a liberty interest that may be involved here.

Treating differently may implicate an equal protection claim.

Justice John Paul Stevens: Let me just put the question one differently and then I will abandon it.

Do you think in the disposition by the Court of Appeals of this case, any particular significance was attached to the manner in which the whole incident of arose?

Now, did it affect that it grew up of the alleged confiscation of the --

Mr. Joel Lewittes: I am sorry.

I did not hear the last part.

Justice John Paul Stevens: As I understand it that two days before the transfer there was allegedly a confiscation of a paper that he had been (Voice Overlap)?

Mr. Joel Lewittes: That is correct.

Justice John Paul Stevens: How important do you think that background is in the Court of Appeals' disposition of case?

Mr. Joel Lewittes: I think in their view it is important.

Justice John Paul Stevens: Well, should it have been important?

Mr. Joel Lewittes: I think not.

Number one, it is not very clear at all whether that was the fact that actually triggered the transfer in the first place.

Justice John Paul Stevens: How would one find out without a trial?

Mr. Joel Lewittes: We do not have a record here.

Justice John Paul Stevens: So then you are saying that there should be a trial of that issue or is it --?

Mr. Joel Lewittes: I do not say there should be a trial because the answer to that is that even if he was transferred for that reason, there was no property of liberty interest involved.

Justice John Paul Stevens: Your position is, just so I have it right, that even if he was transferred because he wrote a letter to his lawyer saying that that would be a permissible transfer?

Mr. Joel Lewittes: Yes, I would.

Justice William H. Rehnquist: What if the transfer were designed to not discipline him in any generals sense, but simply remove him to a place where he would have no access to his lawyer?

Mr. Joel Lewittes: I think that he could then proceed in a plenary action under 1983, claiming that he was denied of his access.

Justice William H. Rehnquist: Not under the procedural due process, but denial of ego?

Mr. Joel Lewittes: That is correct.

Chief Justice Warren E. Burger: I take it that the combination of your responses means that if in fact and in reality, the move or the transfer inflicts no harm or injury that then there is no legal consequence?

Mr. Joel Lewittes: No, what I am saying, I am saying more than that, Mr. Chief Justice.

I am saying that before you determine whether or not there is the grievous loss where there is indeed injury because injury goes to the weight and not to the nature, you must first determine whether or not there is a liberty of property interest to be protected in the first place.

Once it is determined there is indeed such an interest, then we go to see the weight of that interest and whether there is indeed grievous loss.

I think that using grievous loss first puts the cart before the horse.

Chief Justice Warren E. Burger: Well, do you need to go so far as to say that for the purposes of this case that a punitive, to pursue what we have been talking about, a punitive shift from the 12 o’clock lunch assignment to the 1 o’clock assignment and then explicitly stated as such to the prisoner is -- violates no interest?

Mr. Joel Lewittes: I say it violates no interest and if there were any lawsuit it would be de minimis.

Chief Justice Warren E. Burger: Yes, conceded, we can concede for the moment that the loss of the injury will be de minimis in traditional terms, but what about the idea that something will be done to the prisoner if he writes a letter to his lawyer, some sort of the psychological impact is bound to occur on him, is it not?

Mr. Joel Lewittes: Yes, I think that is true however --

Chief Justice Warren E. Burger: Of course that would be the purpose of it?

Mr. Joel Lewittes: However, the fact is that transfer is never used and is not permitted in the State of New York to be use as disciplinary method.

Chief Justice Warren E. Burger: Well, but sometimes people who think they are not permitted to do and then we have the case, that is what we are confronted with sometimes, but surely you cannot -- you do not need to say it, do you, that the City of New York --

Mr. Joel Lewittes: No, I do not.

I hope yes.

Chief Justice Warren E. Burger: (Voice Overlap) lunch hour and tell him that this is a disciplinary action?

Mr. Joel Lewittes: I think the real answer in this particular case, if I may say so, is that this petition by the way was not a petition by the respondent Haymes by any means claiming that he was not, that he was denied access to the Courts.

It was a letter written by Haymes on behalf of 82 signatories who were not before the District Court, and therefore, Mr. Haymes would have no standing in any event to raise that issue.

Justice William H. Rehnquist: Well, Mr. Lewittes, I think maybe your response to the Chief Justice’s question maybe is somewhat inconsistent with what I understood your earlier response to Justice Stevens and my questions were and perhaps I am wrong.

I thought you were saying that as long as he is challenging the matter here under procedural due process and not denial of access to the Courts or to lawyers that he have to establish some sort of liberty or property interest before you ever got to the question of whether there was something punitive done and unless he has a liberty or property interest in the lunch hour right, the state is perfectly free to transfer him from one lunch hour to another and say we are doing it because we do not like the way you are acting?

Mr. Joel Lewittes: I did say that.

Justice William H. Rehnquist: And do you stick to it?

Mr. Joel Lewittes: I do.

Justice Thurgood Marshall: You do not see any interference with his right to go to Court?

Mr. Joel Lewittes: There was no interference here at all with his fight to go to Court Mr. Justice Marshall.

Justice Thurgood Marshall: I thought the petition he drew himself and had the other 82 to sign --

Mr. Joel Lewittes: No.

Justice Thurgood Marshall: -- charge that the librarian prevented them from getting access to the Courts?

Mr. Joel Lewittes: It would seem yes I said that --

Justice Thurgood Marshall: Is that not true?

Mr. Joel Lewittes: That is the petition that was drawn by him on behalf of the 82 signatories.

Justice Thurgood Marshall: To object to denial of materials to access to the Courts?

Mr. Joel Lewittes: No, that is not at all.

What the petition was about --

Justice Thurgood Marshall: In the Chief Judge Kaufman's room?

Mr. Joel Lewittes: The petition --

Justice Thurgood Marshall: The document charged, well, you just wait, let me just read this, the document charged that the Library Officer Edward Brady went, “Out of his way to circumvent in inmates' legal assistance.”

Is Judge Kaufman correct?

Mr. Joel Lewittes: I think that to make the statement more accurate, the petition read that since Mr. Haymes --

Justice Thurgood Marshall: Well, why do you not read what you give value here because I read what was written down here.

Now, read me what the petition says, if you want to contradict it?

Mr. Joel Lewittes: Yes, at page 13(a) to the Appendix.

Now 13(a) reads Mr. Justice Marshall, “I am writing to complain that I am now being deprived of legal assistance as a result of inmate Rodney R. Haymes and John Washington being removed from the prison Law Library.”

It did not say that they were being denied access to the Courts, but they just quoted these two specific people to be on the Law Library, that is basically their claim.

Justice Thurgood Marshall: (Inaudible)

Mr. Joel Lewittes: They are claiming that these two gentlemen, that the removal of these two gentlemen from the Law Library somehow deprives them of legal assistance that the assumption being that only Rodney Haymes and Mr. John Washington could assist them --

Justice Thurgood Marshall: I agree that it could be better done and better worded, but at least they are saying that they will be denied the right to get the assistance, legal assistance, they are charging that?

Mr. Joel Lewittes: Assuming --

Justice Thurgood Marshall: Are they not?

Mr. Joel Lewittes: I do not think they are.

I think that they are claiming that they are unhappy about the discharge of Rodney Haymes, but in any event Mr. Justice Marshall, I think the fact is that that may be a complaint, may be a complaint that could be presented in a 1983 action by any of the 82 signatories, but Mr. Rodney Haymes was not a signatory to that and Mr. Rodney Haymes is not claiming in any matter that he was denied access to the Court.

Justice Thurgood Marshall: But you agree that the other 82 would?

Mr. Joel Lewittes: Pardon.

Justice Thurgood Marshall: You agree that the other 82 would ever cause that?

Mr. Joel Lewittes: I think they could claim it.

I am not suggesting that I happen to feel that simply because Mr. Rodney Haymes and his fellow were removed from the Law Library does not present a cause of action, claiming denial of access whether they want to put on a complaint that these inmates do that.

They may raise any kind of contention, but I do not think it is a viable contention.

Despite the patent failure, it seems to petition out of the Second Circuit to first analyze the facts first to determine whether or not a liberty of property interest is involved.

Both parties here do apparently agree that the Due Process Clause is not implicated unless Haymes can establish a liberty or property interest at a particular maximum security prison.

Now, he does not in any matter allege a property interest since by statute which appears on page 2 of our brief, the power to transfer is discretionary.

Rather Haymes attempts to construct an independent liberty interest in his retention at Attica and he points to those various hypothetical situations raised in the Second Circuit opinion.

It is noteworthy, however, that Respondent Haymes does not allege in any manner that he suffered any of those hypothetical consequences.

The motive which Chief Judge Kaufman referred to in the Second Circuit, claiming the motive was punishment here, we think is not relevant at this point because what Mr. Haymes perceives as punishment as perhaps with Mr. Roth, in the Roth case perceived as grievous loss.

It does not independently establish a property or liberty interest and without this property or liberty interest, the motive nor the results can be denominated as disciplinary and it does not implicate the Due Process Clause.

Justice William H. Rehnquist: Mr. Lewittes, let me ask you one more question if I may.

Supposing that the respondent here had been appointed by the warden as kind of a special assistant to help in the warden’s office and the warden was dissatisfied with his behavior and said I am going to fire you from the special assistant because you are going to back with the mass of the pressures just to punish you for the way you have been acting.

Now, do you think that would be a liberty or property interest (Voice Overlap)?

Mr. Joel Lewittes: I do not.

Justice Potter Stewart: Of the Assistant to the warden or the prisoners who had been depending upon him for legal assistance, how did you understand?

Mr. Joel Lewittes: I understood as assistant to the warden.

Justice Byron R. White: How do you view the statement in Wolfe that procedure of due process is implicated if a person is sent to solitary confinement for breaching the rule?

Is it because the status promised in advance that you will not be sent there unless you violate a rule?

Mr. Joel Lewittes: That is correct because by virtue of certain rules and regulations, it is determined that is a punishment and denominated as a punishment and there is no expectation when one goes to --

Justice Byron R. White: I know, but that is the only answer.

You are in a little trouble here, are you not?

Do you not have to –- what is the property or liberty interest which you claim is the predicate?

Mr. Joel Lewittes: The expectation would be that one would normally stay in the general population.

Justice Byron R. White: That the state has rules and published rules which at least imply that you will not be in solitary unless you break the rules?

Mr. Joel Lewittes: That is correct.

Unless there is a material change in the terms of your confinement, you would have the expectation that you will remain in general population.

Justice William H. Rehnquist: And the same would be true with respect to the laws of good term credits?

Mr. Joel Lewittes: That is absolutely correct.

If there are no more questions, I would like to reserve whatever remaining time I may have.

Chief Justice Warren E. Burger: Mr. Bronstein.

Argument of Alvin J. Bronstein

Mr. Alvin J. Bronstein: Mr. Chief Justice and may it please the Court.

I think the questioning of the Court to my colleague from New York clarified the issue, particularly the questions by Mr. Justice Stevens, as to what the Court of Appeals was concerned about and that was the conduct of Haymes as alleged in the complaint which led to the transfer rather than the transfer itself.

What has not been discussed yet is the procedural posture of the case before the Court of Appeals and before this Court.

The state in their reply brief, filed last Friday, now concedes that the District Court granted a motion to dismiss, that therefore, the allegations of the complaint must be construed liberally, must be assumed to be true, and that they have no evidence in the record at this point to contradict the allegations of the complaint.

The Court of Appeals limited its inquiry.

It did not reach the merits in this case.

They limited their inquiry to whether the complaint stated a colorable claim and they appropriately remanded for an evidentiary hearing, basically on three questions.

Haymes should have the opportunity to prove what his conduct was?

If it was protected conduct then he should have the opportunity to prove that there was casual connection between his conduct and the summary punishment that is the transfer and finally if both of those could be proved, whether he suffered injury and then the present status this Court needs not decide the merits of any of those claims.

Those are appropriately for the District Court in the first instance.

In the light of the state's new view of the present posture of the case is immaterial, I believe, at this point whether we consider this was a Pro Se Complaint as we argue in point 2 of our brief and apply the Haymes kind of test or whether it is the traditional rule on a motion to dismiss under Rule 12 as this Court recently said in Scheuer v. Rhodes.

In any event the allegations of the complaint are assumed to be true, it must be read in the light most favorable to the plaintiff.

Chief Justice Warren E. Burger: Mr. Bronstein, would it make any difference whether he was moved from a maximum security prison 400 miles from his home base to one 10 miles from his home base or the reverse of that proposition?

Mr. Alvin J. Bronstein: It might only make a difference in terms of the injury not in terms of the liberty interest which we claim.

Chief Justice Warren E. Burger: The right would be the same in your submission?

Mr. Alvin J. Bronstein: That is right.

What I am saying Mr. Chief Justice is an answer to, I think what Mr. Justice Stevens was implying before that the state could not punish a prisoner, for example, for writing a letter to the Department of Justice to complain about racially segregated cell blocks.

They could not punish him by transferring him 400 miles or punish him by transferring 20 yards, if he suffered injury.

Justice William H. Rehnquist: But that is not a denial of life, liberty, or property without procedural due process, is it?

That is burdening a substantive constitutional right that he has?

Mr. Alvin J. Bronstein: That is right.

That is the liberty interest in this case Mr. Justice Rehnquist, arises, at least it is alleged at this point in a procedural posture, flows directly from other constitutional rights from other constitutional rights from First, Sixth, and Fourteenth Amendment Rights.

He was either, depending on how the complaint is read, engaging in First Amendment Right to petition the government for readdress of grievances, the act of circulating this petition which he was obviously going to mail to a government official or he was engaging in Sixth and Fourteenth Amendment rights which were identified by Mr. Justice Marshall a while ago.

Justice William H. Rehnquist: Do you think that is what the Second Circuit relied on?

Mr. Alvin J. Bronstein: I think the Second Circuit was concerned about punishment for conduct which at least on the basis of a Pro Se Complaint or a complaint liberally construed, suggest that he was engaged in constitutionally protected activity.

Justice Byron R. White: Your making was not expressed in the Court of Appeals, was it?

Mr. Alvin J. Bronstein: Not expressly because they were dealing with a case --

Justice Byron R. White: So you think they reached a right result but for a reason what you like to explain?

Mr. Alvin J. Bronstein: Well, I think they reached the right result and I think there is the suggestion, although it may not have been clearly articulated in the Court of Appeals' decision.

Justice Byron R. White: Well, let me then -- I will ask you.

Would you like to defend the Court of Appeals' opinion the way it is?

Mr. Alvin J. Bronstein: Well, that depends on the definition of what it is.

I read it to be concerned with the punitive nature of the transfer.

Justice Byron R. White: Yes, is that enough?

Mr. Alvin J. Bronstein: Enough for what Mr. Justice White?

Justice Byron R. White: To get relief, just to prove that you suffered a grievous loss?

Mr. Alvin J. Bronstein: Well, I think, that is not in this case.

That is not what this case is about in its posture, but I do believe that --

Justice Byron R. White: How about the Court of Appeals?

Do you think the Court of Appeals thought that was enough?

Mr. Alvin J. Bronstein: No, I think the Court of Appeals talked about the --

Justice Byron R. White: And you agree that it would not be enough?

Mr. Alvin J. Bronstein: No, not in another case.

I do not agree that it would not be enough for another case.

Justice Byron R. White: Well, you go ahead then, what do you think the Court of Appeals held?

Mr. Alvin J. Bronstein: I think the Court of Appeals held that based on the posture of the case that Haymes had an opportunity to prove that he was engaged in lawful conduct or protected conduct, that he was not violating any regulation of the prison and in fact was engaged in constitutionally protected activity.

Justice William H. Rehnquist: But now those that who were quite different, are they not, to say simply he was engaged in lawful conduct and to say he was engaged in constitutionally protected conduct, well, those are quite different?

Mr. Alvin J. Bronstein: They are indeed Mr. Justice Rehnquist.

Justice William H. Rehnquist: And which do the Court of Appeals hold?

Mr. Alvin J. Bronstein: I think they discussed both or imply both.

It is not the clearest decision, I would admit, but certainly the complaint which they had before them and what I wish to stress is that what this Court is considering now is a case before it in the exact same posture as Cooper v. Pate or Cruz v. Beto, a dismissal of a complaint by the District Court without a hearing, without any responsive pleadings and all we need to look out is the complaint.

Justice Potter Stewart: Do you not think that the program on which the Court of Appeals' decision in their opinion was based on denial of procedural due process?

Mr. Alvin J. Bronstein: Only yes, but only after he was being punished for some conduct.

Justice Potter Stewart: He is not being given sufficient notice and hearing and then wherever else might be required by the Due Process Clause of the Fourteenth Amendment and its procedural aspects, is that not what the Court of Appeals --

Mr. Alvin J. Bronstein: I do not think that was alone what they were saying Mr. Justice Stewart because they took, on page 31(a) of the Appendix in their opinion, they specifically expressed concern about the District Court deciding that the alleged punitive nature of the transfer was not material, the alleged punitive nature.

The alleged punitive nature in the complaint, eight separate times in the complaint Haymes alleges that he was petitioning the Court for readdress of grievances, five separate times he alleges that he was punished or retaliated against for exercising his constitutional right to petition the Court for readdress of grievances.

The conduct therefore, that stands out to me from the complaint, is based just on those allegations conceivably a liberty interest flowing directly from our First Amendment right.

Unknown Speaker: What were the hearing about?

Mr. Alvin J. Bronstein: What were the hearing be about before the District Court or in the --

Justice Byron R. White: No, he claims he was entitled to a hearing before he was transferred?

Mr. Alvin J. Bronstein: That is right.

Justice Byron R. White: Then what would the hearing be about?

Mr. Alvin J. Bronstein: The hearing would be to determine whether or not he was engaged in protected activity.

Justice Byron R. White: That is not the factual question?

Mr. Alvin J. Bronstein: I think it first is a factual question.

Justice Byron R. White: Well, there is no question about what he was doing, is there?

He was circulating this piece of paper.

There is not any question about what his physical acts were and what was on the paper or anything like that?

Mr. Alvin J. Bronstein: No, but the state might have the opportunity under the balancing test that this Court --

Justice Byron R. White: Do you think it just ought to be an argument on the law?

Mr. Alvin J. Bronstein: No, no because the state would have to come in then and respond as to what their interest would be in --

Justice Byron R. White: In short, you want to argue about the law, is that not right?

You want to get to the merits of whether they would be entitled to transfer him for allegedly violating a rule?

Mr. Alvin J. Bronstein: No, first we would have to decide if a rule was violated.

Secondly, whether it if it was not whether he was engaging in constitutionally protected activity.

Thirdly, was the state’s interest involved because some disturbance seemed eminent, the kind of balancing that this Court talked about in Procunier against Martinez.

Justice Byron R. White: Do you think there really is any fact, historical factual question like who did what to whom or what actually happened on a certain day?

Mr. Alvin J. Bronstein: In this case?

Justice Byron R. White: Yes.

Mr. Alvin J. Bronstein: Well –-

Justice Byron R. White: There is no accuracy problem here, is there, about what his conduct was?

Mr. Alvin J. Bronstein: Well, it seems there is some, if one considers the affidavits that were submitted by the District Court then there is some conflict.

I do not think that the affidavits can be considered.

Justice Byron R. White: (Voice Overlap) how to characterize them, but not about actually what he did?

Mr. Alvin J. Bronstein: Well, there are number of factual controversies.

Apparently, his records indicate that he was transferred because of something he did in the Law Library, not what he did in circulating the petition.

It does not say what that something is.

It merely says illicit activity in the Law Library.

It could have been passing contraband or it could have been furnishing legal assistance.

I do not know what that is.

So, there are number of factual controversies if you look down the complaint.

Justice Byron R. White: What liberty interest was involved in that allegation?

Mr. Alvin J. Bronstein: Pardon.

Justice Byron R. White: What liberty interest was involved in that -- in his job in the library?

Mr. Alvin J. Bronstein: I do not think his job in the library is in this case.

I am merely showing that his central file says he was transferred because of his activity in the Law Library, thereby indicating that there is a factual controversy if there were a hearing.

He claims he was transferred because he was circulating a petition in the yard.

The central files seem to suggest otherwise.

Justice William H. Rehnquist: Why under your submission do you say he should have a title on right to argue about whether or not under the balancing the constitutional conduct could be dealt with this way by the prison authorities?

You also say you should have a right to a hearing as to whether he violated a rule, I do not see why that -- the latter follow?

Mr. Alvin J. Bronstein: Only if the evidence would indicate that the state's claim that he did violate a rule was material.

Justice William H. Rehnquist: Well, why does the state need to show any violation of a rule before it transfers a man from one person to another?

Mr. Alvin J. Bronstein: I do not think that is in this case Mr. Justice Rehnquist.

Justice William H. Rehnquist: And why should there be a hearing about that?

Mr. Alvin J. Bronstein: Well, if the rule were to infringe on a separate protected liberty interest, if the rules would say as Mr. Justice Stevens I think asked before, you may not write to your lawyer otherwise we will transfer you or you may not complain to the Department of Justice about racial segregation, otherwise we will transfer you, then the rule would certainly be at issue.

Chief Justice Warren E. Burger: He is sentenced to the custody of the correction authority in New York, is he not?

Mr. Alvin J. Bronstein: That is true.

Chief Justice Warren E. Burger: And administratively, he is then assigned to an institution, is that correct?

Mr. Alvin J. Bronstein: That is correct.

Chief Justice Warren E. Burger: And suppose they advise him or he learns that he is going to be sent to Attica and he says now Attica has a terrible history and that it is a dangerous place and I want to go somewhere else and I want a hearing, is he entitled to the hearing?

Mr. Alvin J. Bronstein: Well, first Mr. Chief Justice that I believe respectfully is not what is involved in this case, but I think --

Chief Justice Warren E. Burger: We were kind of sort out what is here and I find great difficulty so far?

Mr. Alvin J. Bronstein: Well, I think in the question, in a hypothetical what you postulate, some minimal inquiry should be made in the facts that you make.

In fact, that is what the prison officials do.

Before a prisoner is assigned to Attica or Clinton or a Federal System to Leavenworth or Danbury, a case worker, a classification officer meets with the prisoner, finds out what his potentials are, what his problems are, what his interests are and then makes a decision.

Chief Justice Warren E. Burger: Of course the convicted person's opinion as to where he ought to be assigned, does he?

Mr. Alvin J. Bronstein: Well, I think in some cases, they do.

They ask, where is your family?

Do you have a preference of being near the family?

Are you close to your family?

Chief Justice Warren E. Burger: It is getting factual information not an expression of desires?

Mr. Alvin J. Bronstein: Well, in the hypothetical you postulate which is not our case where we claim separate protection interest, it is factual information that is essential before the prisoner officials exercise the discretion that I would concede in your situation that they have, merely, get accurate facts before you exercise discretion.

Chief Justice Warren E. Burger: Well, do they have to get any facts?

I suppose the prison authority simply has a rotation and right in straight rotation.

All people assigned to maximum security prisoners are, if they have three of them, every third man goes to one of them.

There is no consultation, no inquiry, no hearing.

Are you suggesting that there is some property or liberty interest in the first instance?

Mr. Alvin J. Bronstein: I think in every instance where a prisoner will suffer injury or will be faced with more adverse consequences as a result of these conditions of confinement as the Court discussed in footnote 19 in Wolfe and in each of those instances, the admittedly discretionary authority of the corrections officials require some examination into the facts.

The kind of examination might be very, very minimal in the hypothetical you postulate.

It should be much more serious in a situation such as the ones in Wolfe where a person was going to lose good time credits.

Chief Justice Warren E. Burger: Let us assume -- you get how many maximum security prisons do you have in New York, do you know?

Let us assume.

Mr. Alvin J. Bronstein: I think there is four or five.

Chief Justice Warren E. Burger: Alright there are four.

He is assigned to one that 400 miles away from his home and he demands a hearing and says he wants to be at one nearest to his home.

Do you have a property or liberty interest or any kind of an interest on where is to be assigned in the first instance?

Mr. Alvin J. Bronstein: I think there is some very, very limited interest, the kind of interest that Mr. Justice Douglas talked about in his concurring and dissenting opinion in Wolfe.

Chief Justice Warren E. Burger: Solely, protected interest?

Mr. Alvin J. Bronstein: An interest flowing from the core value of the liberty concerns of the Due Process Clause that this Court has talked on occasion where there is injury as a result of arbitrary actions of the administrator.

I am not suggesting that a Wolfe hearing would be required in a whole range of decision areas or decision points.

Certainly at the initial designation, the classification, people may have all the facts before they need from his pre sentence record, from his probation report before his sentence?

If they have those facts then perhaps merely finding out where his family is or if he has any particular educational or vocational aspirations that might be all that would be necessary.

Justice Thurgood Marshall: The right to be near his family?

Mr. Alvin J. Bronstein: Well, it is not the constitutional right to be near their family.

The constitutional --

Justice Thurgood Marshall: Did the state stop their family from visiting them?

Mr. Alvin J. Bronstein: Pardon.

Justice Thurgood Marshall: A place where they might get visitors, what is wrong with that?

Mr. Alvin J. Bronstein: Can the state stop the family from visiting?

I do not think so.

Justice Thurgood Marshall: Can the state set up a prisoner with no visitors?

Mr. Alvin J. Bronstein: I think not.

Justice Thurgood Marshall: The case being?

Mr. Alvin J. Bronstein: Well, I think that would be a violation of the First Amendment.

Justice Thurgood Marshall: Originally they used to -- the judge used to pick the jail, he went to?

Mr. Alvin J. Bronstein: That is correct.

Justice Thurgood Marshall: Without any ceremony, any concepts, or any thing?

Mr. Alvin J. Bronstein: That is correct.

Justice Thurgood Marshall: And never questioned, was it?

Mr. Alvin J. Bronstein: Well, I think it is now.

I think times have changed.

Prisoners in jails and our perceptions about them are different now than they were many years ago.

Justice Thurgood Marshall: Well, is it not true that leaving New York, you can go to Texas.

You can take a man from Galveston, Texas and put him into jail in El Paso.

There is not a thing in the world you can do it about it legally?

Mr. Alvin J. Bronstein: Not about the decision.

That is correct.

Justice Thurgood Marshall: Original job assignment?

Mr. Alvin J. Bronstein: That is correct.

All I am saying is that --

Justice Thurgood Marshall: So what argument that there is anything on the original side?

Why take on that extra weight?

Mr. Alvin J. Bronstein: Well, it is not on this case and all I am suggesting is that in the appropriate case, there might be some appropriate factual inquiry necessary.

Justice Thurgood Marshall: So why do you not say rather that they can do it originally, but they cannot do it afterwards?

Mr. Alvin J. Bronstein: [Sighs]

Chief Justice Warren E. Burger: I am beginning to see when this rights or property interest that you are getting comes into being, so I wanted to see whether you thought he gets it by virtue of the sentence, the judgment of the Court?

Mr. Alvin J. Bronstein: In the situation where it has nothing to do with conduct it arises in different places at different times.

In our case, in this case, the case being before this Court as it was before the Court of Appeals on the decision on a motion to dismiss with uncontroverted allegations, there is a separate liberty interest involved at least on the face of the complaint.

That liberty interest flowing directly, not from the Due Process Clause originally, but from the First or Sixth Amendment which triggered the implications of the Due Process Clause.

It is precisely what this Court talked about in Perry and Sindermann where they said, the liberty interest in due process would be irrelevant if a person were being punished for exercising a separate constitutionally protected right, a right flowing from the Bill of Rights.

Justice John Paul Stevens: It does not indicate Mr. Bronstein that really the theory you are advancing now is not a procedural due process theory at all?

Mr. Alvin J. Bronstein: That is right it is a substantive --

Justice John Paul Stevens: So we do not really have to find the grievous loss or any of that and even if you were given a hearing, you would still have a claim under the theory you now describing?

Mr. Alvin J. Bronstein: That is right.

The grievous loss only goes to the question of damages.

The transfer in this case only becomes relevant to the question of was the transfer punishment for the protected activity and did it result in injury?

It is not the case in this posture whether a liberty interests flows from the right not to be transferred --

Justice John Paul Stevens: There you are not talking about the causal connection, fact of damage and amount of damage, you are not talking about the source of the right at all?

Mr. Alvin J. Bronstein: That is correct.

Justice Byron R. White: Making a major amendment of the Court of the Appeals opinion, but you are not foreclose from presenting that ground for a permanent side, take it?

Justice John Paul Stevens: Your own limit point I take it is that there is enough in the complaint to require a hearing?

Mr. Alvin J. Bronstein: Precisely and that which is enough on the complaint in terms of a substantive right has been recognized by this Court already if he can prove it.

The Court in Cooper v. Pate and Cruz v. Beto has held that a District Court erroneously dismissed a complaint where it alleged a violation of the First Amendment of Religious Freedom Act.

The Court had held that a prisoner retains, Pell v. Procunier his First Amendment Rights and in Procunier v. Martinez the Court struck down a California regulation because it offended the constitution, a censorship of male regulation --

Justice Thurgood Marshall: Suppose a application, they need to get lawyer to judge -- for judgment, right?

Mr. Alvin J. Bronstein: That is correct.

Justice Byron R. White: May I ask you?

Suppose a separate liberty interest were not involved, the Sixth Amendment or the First Amendment, that suppose two prisoners were found to have violated the rule of the prison against trashing the library or something like that and one of them was sent to solitary or say one of them was deprived of the good time and the other one was just transferred to another prison and concededly both consequences followed from the violation of the rule.

Neither was given a hearing.

Would both of them be entitled to hearing under your view?

Mr. Alvin J. Bronstein: I believe under what this Court said in Wolfe v. McDonald.

Yes, both of them would be entitled to hearing.

Justice Byron R. White: Why would that be?

Mr. Alvin J. Bronstein: Because the Court indicated that if there was a major change in conditions with adverse consequences --

Justice Byron R. White: Well, yes but there in far as good time is concerned, I thought the Court said that the state created the expectation of good time and promised that it would not be taken away unless some rule was violated?

Mr. Alvin J. Bronstein: Well, I think –

Justice Byron R. White: Is that not what the case?

Mr. Alvin J. Bronstein: As for the good time, yes.

Justice Byron R. White: Yes.

Now, do you know of any rule in any of the New York Prisons that were already or any indication that any of the regulations that there are some promise that you will not be transferred unless you violate a rule?

Mr. Alvin J. Bronstein: Well, as I understand the New York Regulations, the contrary is true.

They have this rather Catch 22 situation.

Justice Byron R. White: What is the expectation of not being transferred?

Mr. Alvin J. Bronstein: In your hypothesis, not being transferred for misconduct and suffering grievous loss.

I thought --

Justice Byron R. White: I know, but they might have promised him, they are not put him in solitary or deprive him of good time if he violated --unless he violated the rule, but is there some promise that you will not be transferred?

Mr. Alvin J. Bronstein: Well not.

I do not think it requires a promise.

I think this Court held in Wolfe that the interest of prisoners in these proceedings, is included and rejected the state of Nebraska’s assertion that it was not included in the liberty interest protected by the Fourteenth Amendment.

Justice William H. Rehnquist: But in Nebraska, the statute provided for good time credit.

You are suggesting that just some sort of informal decision making creates the same sort of expectation as a statutory promise?

Mr. Alvin J. Bronstein: Well, but the Court also dealt with solitary and indicated that solitary represented a major change in the conditions of confinement, and therefore, triggered the implications of the due process.

Justice Byron R. White: Prison regulations, the imposition of that kind of serious punishment was conditioned upon the breach of the rule?

Mr. Alvin J. Bronstein: Well, I thought that was your hypothesis that a rule was breached and that then –-

Justice Byron R. White: But I do not see any rule in New York Prisons that say that we will not transfer unless you breach the rule?

Mr. Alvin J. Bronstein: No, I misunderstood you.

What my position is that you do not need a state rule saying we will not do something in order to trigger the liberty interest --

Justice Byron R. White: Well that is outside the McDonald is it not?

Mr. Alvin J. Bronstein: Well, with all due respect, that is the way I read McDonald and particularly the –-

Justice Byron R. White: Well, it is the way the Court of Appeals reads to that effect, I take it?

Mr. Alvin J. Bronstein: No, because ours is a different case dealing with the specific conduct of the prisoner as I indicated which I think flows directly from the reading of his complaint.

I think our case is precisely what the Court said in Procunier and Martinez that the interest of prisoners and in the sense of communication.

In this case, the right to petition for redress of grievances ground in the First Amendment is plainly a liberty interest within the meaning of the Fourteenth and as such as protected from arbitrary governmental intrusion.

Similarly, the Sixth and Fourteenth Amendment rights are protected by a Johnson and Avery, Procunier v. Martinez and I think that all the District Court did hear was to deny the motion to dismiss.

All the Court of Appeals did was to say that there is a colorable claim in this complaint.

They remanded to the District Court.

It did not reach the merits.

I think the decision of the Court of Appeals should be affirmed and the case remanded to the District Court for the taking of proof on those three issues.

The nature of this conduct was a punish by transfer and that he suffered loss as result of that.

Chief Justice Warren E. Burger: Very well.

Mr. Lewittes.

Rebuttal of Joel Lewittes

Mr. Joel Lewittes: It is clear that the respondent has completely turned course here.

The issues he now raises were raised in only footnote 20 to his brief on page 20.

But it is interesting to note that Mr. Rodney Haymes, although he alleged civil claims of retaliation in his petition, only one aspect has been pursued both in the District Court and on the Court of Appeals and that have to do with the procedural due process issue whether he was entitled a notice of hearing and not a claim that is claimed today that he was transferred for a prohibitive reason that is the First or Sixth Amendment Right.

In any event, it is clear from the petition itself that he has no claims here.

There is no standing on his part to raise these issues.

He did not.

All he did was put that petition on behalf of 82 signatories.

He does not claim in any manner that he was denied access of the Court.

Justice John Paul Stevens: Mr. Attorney General, in the very last paragraph of his complaint petition on page 6(a) of the, that is before the conclusion of the Appendix, he does alleged that he was removed from his job assignment, that the petition was confiscated, all his direct result of administration reprisals against your petitioner for assisting those inmates contained in Civil Action No. so and so for assisting Attica Inmate Number Martinez in another petition and for also for circulating the petition.

Does that not give him standing?

Mr. Joel Lewittes: I think that the –-

Justice John Paul Stevens: It is not just the 82 signatories, he is suing on behalf.

He is suing on behalf of himself as I understand it?

Mr. Joel Lewittes: I think the answer to that is found later in his affidavit which in essence was his amended complaint on page 19(a) of the Appendix, where he says he was finally shifted from Attica to Clinton in obvious conspiracy attempt to separate this plaintiff from the other inmates who were also petitioning the Court for readdress concerning the inmates' legal assistance, all of which were direct facts of reprisal by that -- in respondents against your plaintiff for attempting to exercise his own constitution rights and attempting to assist other inmates for securing their constitutional rights.

Justice John Paul Stevens: It is not what I read?

Mr. Joel Lewittes: It does seem to say that yes sir, but it is clear to me that the petition itself, looking at the petition itself, the body of the petition indicates clearly that it was on behalf of the signatories who were complaining that Mr. Rodney Haymes had been indeed removed from the position of law clerk and not that Rodney Haymes by the way had in any manner had been denied access to the Courts because his complaint would not have been on the District Court in the first place had he been denied access to the Court.

Justice John Paul Stevens: Well, he does not say he has been denied access to the Courts.

As I read it, he says that he was transferred because he rendered legal assistance to other inmates, that is what he says?

Mr. Joel Lewittes: We must not forget that there was a rule involved here.

Justice John Paul Stevens: Well, but that is a matter of defense, is it not?

That is exactly the point your opponent makes and I agree with you, he changed his theory from his brief, but do you not have to meet that theory?

Mr. Joel Lewittes: I think that –

Justice Byron R. White: (Inaudible) that he does not have any constitutional right to assist other inmates?

Mr. Joel Lewittes: Yes.

Justice John Paul Stevens: You are satisfied to say that if a man can be disciplined for assisting other inmates with legal --

Mr. Joel Lewittes: I am not admitting there was any discipline here.

Justice John Paul Stevens: He can be transferred for that reason?

Mr. Joel Lewittes: He can be transferred for any reason.

Justice John Paul Stevens: That in order –-

Justice Thurgood Marshall: (Inaudible) in the last full paragraph, keeping your plaintiff along with others from submitting this petition to this very Court for the readdress of grievances is there too?

Mr. Joel Lewittes: I do not seem to have.

Justice Thurgood Marshall: 20(a)

Justice Potter Stewart: The last part?

Justice Thurgood Marshall: Pro Se job?

Mr. Joel Lewittes: Well, it is not really a Pro Se job because seven months before the decision in the District Court this petitioner had counsel, retained counsel who never raised these issues by the way in the District Court.

So it is --

Justice Thurgood Marshall: It was a Pro Se petition?

Mr. Joel Lewittes: It was Pro Se petition Mr. Justice Marshall, but the fact is that he did retain counsel who did submit seven months prior to the decision in the Western District a memorandum on behalf of himself.

Justice Thurgood Marshall: Well assume --

Mr. Joel Lewittes: I cannot really say it is Pro Se.

Justice Thurgood Marshall: Assuming that this was the best lawyer in the state and dean of all of law schools, is this enough to show that he alleges he was denied the right to petition the Court for readdress of grievance?

Mr. Joel Lewittes: It is an allegation, but I do not think it is a --

Justice Thurgood Marshall: Well, do we have anything before us other than allegations?

Mr. Joel Lewittes: No, we do not.

We only have --

Justice Thurgood Marshall: And do we have to give those allegations a full force?

Mr. Joel Lewittes: We have to give the allegations a fact of full force, but not the conclusions of law necessarily that flow there from.

Justice Thurgood Marshall: Well, what -- there is no conclusion of law here.

Why do you not want a hearing on this in the District Court?

What is wrong with that?

Mr. Joel Lewittes: I do not think that he has stated a claim and he has just stated a dismissible claim and there is no reason to go back to the District Court again.

He has not stated the cause of action.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.