BOUNDS v. SMITH

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Argument of Jacob L. Safron

Chief Justice Warren E. Burger: We will hear arguments next in 75-915, Bounds v. Smith.

Mr. Safron, I think you may proceed whenever you are ready.

Mr. Jacob L. Safron: Mr. Chief Justice and may it please the Court.

This case is before this Court on the grant of a petition for the certiorari to the Fourth Circuit Court of Appeals to review similar claims brought by various North Carolina prisoners to the effect that by not providing them with legal research facilities, the State of North Carolina has denied their access to the courts.

The District Court in its original opinion tracked the language of the Three-Judge Federal Court in California and Gilmore v. Lynch, and stated that the volumes available would provide meagre fare for a lawyer who is trained in his profession and even more meagre fare for an inmate who has no legal training to assist him in discerning how to file, what petitions, and what to include in them.

The Court takes notice of more than mere facts are necessary in order to file petition for relief by a way of habeas corpus, for example.

The Fourth Circuit Court of Appeals affirmed in an opinion which is quite simplistic in its approach stating that the State of North Carolina has an obligation under the various cases to provide legal research facilities.

It is our argument and we submit that the District Court erred and at the Fourth Circuit Court of Appeals erred in its conclusions.

One, that extensive legal research facilities are required, and number two, that there is in fact a constitutional obligation as a primary obligation to provide these facilities.

Now, in support of this argument I would first like to point out that this Court has promulgated rules, which go into effect just about any day now, the new rules governing Section 2254 cases.

These rules go into affect pursuant to Public Law 94-349, 30 days after the recess of the 94th Congress.

Now, we take a look at these rules, we also take a look at the forms in those rules and the forms currently available in all of the United States District Courts to file habeas corpus proceedings for State Court prisoners in the District Courts.

I have here a typical sample which I am sure the Court is well aware, a fill in the blanks form available from any United States District Court Clerk, and the forms are quite clear that just set forth facts.

Now under the rules which go into effect any day now, the rules of this Court, utilizing the forms provided for in these rules. It states quite clearly, number one, in the instructions, in setting forth the grounds, supporting facts and the word ‘facts’ as prepared by this Court is in capital letters, supporting Facts (tell your story briefly without citing cases or law).

Now these are the forms for use in habeas corpus which any day now will be in effect, and the instructions of this Court in order to gain access to the United States District Courts in habeas corpus proceedings are tell your story briefly without citing cases or law.

In Civil Rights matters there are the recommendations of the Federal Judicial Conference.

These recommendations include various recommended forms.

The instructions that go with these forms state, “You will note that you are required to give a fax.

THIS COMPLAINT SHOULD NOT CONTAIN LEGAL ARGUMENTS OR CITATIONS.

These forms go on to provide statement of claim.

State here as briefly as possible the facts of your case, describe how each defendant is involved, include also the names of other persons involve dates and places.

Do not give any legal arguments or cite any cases or statutes.”

In the prayer for relief contained in this printed form paragraph five, relief.

"State briefly exactly what you want the court to do for you.

Make no legal arguments, cite no cases or statutes.”

Justice Thurgood Marshall: How in the world would you find out what the court really wants to do?

What he would say, I am going out?

Mr. Jacob L. Safron: Well, Your Honor this is a civil rights matter.

Justice Thurgood Marshall: Is that what he would say I am going out?

Mr. Jacob L. Safron: I have seen civil rights cases where that is it.

Justice Thurgood Marshall: That is not my question.

Is that what you think is proper?

Mr. Jacob L. Safron: If Your Honor please it depends --

Justice Thurgood Marshall: And secondly, is that helpful to the Court?

Mr. Jacob L. Safron: If Your Honor please now, in the Middle District of North Carolina these forms, recommended by the Judicial Conference, have in fact been adopted by local rule.

I, out here, a civil rights case I filed, I responded to last week.

Justice Thurgood Marshall: Do you know that?

Mr. Jacob L. Safron: These rules came out subsequent --

Justice Thurgood Marshall: Do you think?

Mr. Jacob L. Safron: These forms --

Justice Thurgood Marshall: Do they become effective without the knowledge of the Fourth Circuit counsel.

Mr. Jacob L. Safron: If Your Honor please --

Justice Thurgood Marshall: Well, I suppose no.

Unknown Speaker: Well, of course you might point out that Judge Harmsworth (ph) who has sat on this panel did he not?

Justice Thurgood Marshall: Yes he did Your Honor.

Unknown Speaker: There is a member of the Judicial Conference that prepared these rules.

Mr. Jacob L. Safron: And these rules are prepare subsequent to that argument, but the point I would like to --

Justice Thurgood Marshall: What he was working on then?

Mr. Jacob L. Safron: I have no idea what he was working on Your Honor.

But the point I would like to make --

Unknown Speaker: General Safron, in the response you have made the other day to the habeas corpus petition, did you cite any cases?

Mr. Jacob L. Safron: This one your honor?

Unknown Speaker: The one you said you responded to one of these forms.

Mr. Jacob L. Safron: Well this is the civil rights form.

Unknown Speaker: I understand, but one you responded to these, did you sometimes cite cases?

Mr. Jacob L. Safron: Oh yes we do, but now on this particular --

Unknown Speaker: What is the point you are making about the fact that the initial filing does not require any citation of cases, what do you develop from that point?

Mr. Jacob L. Safron: What I mean is this Your Honor.

The theory is that the inmate requires legal research facilities in order to have access to the courts, and my thesis is this, there is access to the courts.

The Federal Judiciary has developed forms which make it perfectly clear that you are not to cite cases, you are not give legal arguments in these filings.

Now Justice --

Unknown Speaker: That is in the initial filing?

Mr. Jacob L. Safron: Yes Your Honor.

Unknown Speaker: And most litigation involves more than one filing.

Mr. Jacob L. Safron: Oh yes, but the theory of these cases up to this point has been that the inmate has been denied access to the courts because they have not had legal research facilities, and there is that thesis with which we do not agree, because as we take Mr. Justice White’s dissent in Johnson v. Avery which is the fountainhead case in this area.

He made it clear that filing a habeas corpus proceeding is a simple matter because once it is filed the court will apply the law to the facts, and that is what happens in all these whether vast majority of the prisoner cases.

The Court obviously through the use of its law clerk, these legal research facilities, the courts as this Court have law clerks whom they carefully interview from many, many clerks who are legally trained, so that they could provide a meaningful assistance to the court.

I questioned what type of meaningful assistance has given the court, the Federal Judiciary or the State Judiciary by some inmate who probably has a sixth grade education who is not trained in the law.

He cannot help the court.

I have some cases cited, most cases which were cited by the inmates are miscited or have no -- cannot even be found.

Justice Thurgood Marshall: I bet I have seen some you have miscited too, if I look to all of them.

Mr. Jacob L. Safron: That is quite possible Your Honor, but we try not to.

Justice Thurgood Marshall: I do not understand your point.

Your point is that it will not help them to have the library, that he does not need the library.

Now, he is on one side of the case and as my brother Stevens said, you -- and you are obviously are on the other side -- you have blank number of assistance, blank number of paralegal, blank number of libraries and everything and that is an equal play, and it is not.

Mr. Jacob L. Safron: First of all Your Honor I mean we are at only --

Justice Thurgood Marshall: And that case Avery, despite what you have, I think Avery is still a law.

Mr. Jacob L. Safron: Your honor I agree that Johnson v. Avery is the law, because -- let us read Johnson v. Avery --

Justice Thurgood Marshall: Johnson v. Avery says one of the ways of doing it is giving him some help.

Mr. Jacob L. Safron: Your honor no, Johnson v. Avery says --

Justice Thurgood Marshall: It said, give him some help.

Mr. Jacob L. Safron: Johnson v. Avery sets that there is a secondary obligation, and the secondary obligation is, if the state prohibits mutual legal assistance between inmates then that gives rise to a necessity to determine alternatives.

Johnson v. Avery is clear.

The law library is --

Unknown Speaker: Do you agree with it?

Mr. Jacob L. Safron: Sir.

Unknown Speaker: Do you agree with Johnson v. Avery?

Mr. Jacob L. Safron: Yes I do.

Unknown Speaker: Do you want to refile that?

Mr. Jacob L. Safron: Yes Your Honor.

Unknown Speaker: I suppose nothing in Johnson v. Avery suggested that the prisoners’ resources have to be equal to that of the state.

Mr. Jacob L. Safron: No Your Honor, not at all.

Although Johnson v. Avery states is that if in the event the state, the Department Of Corrections in a particular state passes a regulation prohibiting mutual legal assistance, then in that event alternatives are required.

Now, we turn to one of the last definitive statements on this point of this Court, the case of Ross v. Moffitt written by Your Honor.

Now, in Ross v. Moffitt, this Court made it clear that it is not the obligation of the state to provide that legal arsenal which is available to the private citizen.

Unknown Speaker: Mr. Attorney general, is it the position of North Carolina that no library need to be provided.

Mr. Jacob L. Safron: If Your Honor please, it is the position of the State of North Carolina that if the library would be provided it is in a ministry of decision of the State, and that the Constitution and the cases of this Court do not require the State to provide legal research facilities.

Unknown Speaker: No library facilities at all, no access, for example, to the slip opinions on the decisions of this Court, if that is right?

Mr. Jacob L. Safron: That is correct Your Honor.

Unknown Speaker: Now let me follow that up just a bit.

You emphasized that forms and I understand why you do I think they are said that you are not irrelevant, but is it not possible that inmates may need access to the opinions of this Court, for example, to determine whether or not to consider filing a petition for habeas corpus or a civil rights action.

Mr. Jacob L. Safron: If Your Honor please, number one, filing a habeas corpus proceeding is a simplest thing in the world.

As Mr. Justice White pointed in his dissent, we need only look at the record.

Justice Byron R. White: In the still over your dissent.

Mr. Jacob L. Safron: Oh yes Your Honor, but in your dissent you pointed out and how the majority agreed that filing a habeas corpus petition is a simplest thing.

No facts, no lawyers required you just take the facts, and obviously -- and it is been my experience and as Your Honors are well aware -- when these petitions come in, the Federal Judge and his law clerk and the United States magistrate reviews these things.

It is been my experience that of course -- let us see what happens.

In that particular situation it is reviewed and --

Unknown Speaker: Consequences where it is the (Inaudible).

Justice Byron R. White: A few situations where the relief sought is obviously frivolous, like we have had complaints filed -- I want credit for a time spent on the escape.

In those instances the petition would be summarily denied.

Now the inmate need merely give a notice of appeal, and the entire record goes up to the Fourth Circuit where a Three-Judge panel, in the Circuit Court reviews it, and the Circuit Court judges have the assistance of --

Justice Thurgood Marshall: You want us to overrule Younger and Gilmore, don’t you?

Mr. Jacob L. Safron: Your Honor I would like to speak to the Younger case.

I would say this that Younger was improperly decided that Younger should be overruled.

We have a one paragraph Per curiam and it cites two cases, Alabama Teachers which merely goes to the proposition that this Court has jurisdiction on appeal from a Three-Judge District Court, and it cites Johnson v. Avery.

Now, Johnson v. Avery merely held explicitly that the State has no such obligation unless there is a prohibition of mutual legal assistance.

In the State of North Carolina, as the Court readily finds, there is no such prohibition against mutual legal assistance.

Unknown Speaker: Now, let me get back to your basis.

Are you taking this position on the theory that the law library would be useless?

Mr. Jacob L. Safron: Your Honor to perhaps a small handful of inmates they maybe useful, a small handful of inmates who perhaps have the intelligence to utilize these facilities, but as a member of the Bar, quite frankly I almost take this as a personal insult.

I went through the college, I went through the law school, I took the Bar exam in order to be trained in legal research, and quite often as this case itself reveals, there are attorneys on both sides and courts on both sides which disagree on what the law actually is in any given case.

Unknown Speaker: Does the State of North Carolina make an application for an LEAA grant for a library?

Mr. Jacob L. Safron: Your Honor, what happened there, we were under the order of Judge Larkin (ph) to implement this.

The Director of Prisons of the State of North Carolina went before the Advisory Budget Commission of the North Carolina General Assembly with Judge Larkin’s order in hand, and the Advisory Budget Commission of the State in preparing the budget for submission found or said that they would not appropriate such funds, that they have never heard of any thing as foolish as that, that they had other needs for State resources, and they were not going to appropriate money for prison law libraries when the State has not yet found it able financially to provide any such facilities to the judges of our courts of the State or our District Attorneys.

It would in fact result that in many areas the judges do you find such facilities would be appearing in the prisons.

Now, we have 77 units spread across our State, across 475 miles.

It would be as if we went from Raleigh, where I live, to New York City, that is the distance, a tremendous distance.

Unknown Speaker: But, Mr. Safron, the answer that you suggested --

Unknown Speaker: Let me back to my question that you did file an LEAA Grant?

Mr. Jacob L. Safron: An LEAA grant was prepared because the General Assembly refused to fund any money and it perfectly clear that they would not condone any line item transfers.

Unknown Speaker: Did the State of North Carolina in that application state that a prison library would be useful?

Mr. Jacob L. Safron: If Your Honor please, when one applies for a grant one puffs to get the money and that was puffing to receive an LEAA grant because the --

Unknown Speaker: The answer is yes?

Mr. Jacob L. Safron: Yes, but Your Honor please that still does not get to the basic constitutional question.

Now, we have not provided our judiciary with such resources, we are not --

Unknown Speaker: Or it does get to your statement that the libraries would be useless?

Mr. Jacob L. Safron: Your Honor, unfortunately that grant was salesmanship.

It was seeking, that application was seeking a grant.

You have to say what LEAA wants to hear to get the grant.

Now, the facts and figures are interesting.

In the Fourth Circuit Court of Appeals, in 1973 some 46% of all prisoner civil rights cases of the United States were filed.

In 1974 the figure went down, in 75 20% of all the petitions of the United Sates.

Nationally 18% of all cases filed in the United States District Courts are prisoner petitions.

In North Carolina the percentage is 41% of all petitions filed, are filed by prisoners.

Now, the State of North Carolina this year has appropriated $5,700,000 for aid to indigent defendants.

We have complete post conviction procedures.

As in the federal system when a post conviction application is filed the judge reviews it, if there is any merit he appoints counsel, if he finds no merit --

Chief Justice Warren E. Burger: We will resume there at 1 o’clock counsel.

You may continue counsel.

Mr. Jacob L. Safron: Mr. Chief Justice, as we were stating at the break, in the State of North Carolina we have developed extensive state post conviction proceedings and also have extensive rules for the appointment of the counsel to indigent defendants.

As in the federal system when a State Court prisoner files a petition that petition is reviewed by the State Court Judge.

If the State Court Judge finds any merit in the petition he will point counsel to represent the petition in a plenary hearing.

If he finds no merit in the petition, he obviously dismisses the petition.

However, in the State Court system unlike the federal system the inmate has an absolute right to the appointment of counsel to seek certiorari from the North Carolina Court of Appeals.

Therefore, he has counsel to prepare his petition for the certiorari to the North Carolina Court of Appeals where it is reviewed and of course ruled upon that court.

I would like to point out to the court that in our brief there is an appendix.

Unknown Speaker: Just before you proceed to that -- what would be the mechanics that he is getting counsel in your state system?

He files rights out in prison, let us say, without the help of any professional help or any book help, and he files a collateral complaint or some kind in your State Court.

It is denied.

Now, how does he or anybody else know that it has been denied, how does he go about getting counsel to appeal that?

Mr. Jacob L. Safron: Well, of course Your Honor, he is provided with the copy of the order of the court denying his petition, and under North Carolina General Statute 15222 which provides for petitions for certiorari to the North Carolina Court of Appeals, and North Carolina general statute 7A-451, which is the statute providing with the appointment of counsel for indigents, all he merely do is write the court, request the appointment of counsel, and counsel will be appointed to represent him on a petition for cert to the North Carolina Court of Appeals.

Unknown Speaker: He does then have our states statutory right to counsel to represent him at the original hearing on the collateral attack, doesn’t he?

Mr. Jacob L. Safron: Well, of course, Your Honor at the --

Unknown Speaker: Does he or doesn’t he?

Mr. Jacob L. Safron: If the court finds merit and holds a hearing, he has a right to counsel, yes, but if the court finds --

Unknown Speaker: I mean in that merit, if the petition makes out a plausible case?

Mr. Jacob L. Safron: A plausible case, he has a right under our statute 7A-451 to the appointment of the counsel, and the court appoints counsel to represent that petitioner.

Unknown Speaker: But if the court finds no merit and therefore does not appoint counsel and further therefore denies the writ, he still has an absolute right to counsel to deal with that.

Mr. Jacob L. Safron: He has an absolute right of appointment of counsel to assist him, to prepare the petition for cert to the North Carolina Court of Appeals.

Unknown Speaker: And how does he get a copy of the order of denial?

Mr. Jacob L. Safron: He writes a letter to the court, I appeal, appoint the lawyer for me.

And so actually in the state system a lawyer is appointed whereas in the federal system at that there is no right to the counsel.

Unknown Speaker: Right, or at either point.

Mr. Jacob L. Safron: At the either point.

I would like to point out the in the Appendix to our brief on the merits, we have reviewed the histories of these various inmates who are the plaintiffs in the initial case.

Now, the various cases which we refer, Mr. Nakell sent a young attorney who spent two days in our office reviewing all of these files.

I would ask this Court to read that Appendix, at Appendix commencing on Page 25.

It reveals how the State has appointed counsel time and time again at these post convection proceedings, how the State has appointed counsel on petition for review on certiorari, how these inmates have had their day in court time and time and time again.

I submit that every view of this reveals that they have not been denied access, they have not been denied meaningful access, and that these inmates have had more than their day in court.

I would further submit that this Court issue clear in the instructions to the inferior federal courts that a rereading of Johnson v. Avery is required, that the fountainhead case here states that the alternatives are required if there is a state regulation prohibiting mutual legal assistance between inmates.

There is no such prohibition in North Carolina.

Therefore, the requirement of Johnson v. Avery does not come into play.

One must also read Ross v. Moffitt in conjunction with Johnson v. Avery.

The State is not required to provide the same arsenal to prisoners, the same legal resources as a private citizen may obtain.

I would further suggest that the case of Gilmore v. Lynch be reread, because that court assumed as many federal courts have been assuming that there is a definite obligation to provide legal facilities.

The lower courts have misread Johnson; they have gone to step two without ever seeing what is required to reach step two.

Unknown Speaker: Well, a Federal Court may have to go step two if the state, as a matter of its state policies, said we are going to provide adequate law libraries to everybody in custody in our prison system, and then proceeded to supply adequate law libraries to only one institution but not to any of the others, then the prisoners in those other institutions would have an equal protection plan, wouldn’t they?

Mr. Jacob L. Safron: No question about it Your Honor, there would be equal protection problem.

But I would say this we have a situation with 77 units in our State covering 475 miles.

Most of these units as the Fourth Circuit readily acknowledges are small, they are set in localities throughout the State.

So, we can have work release, so, we can have study release, so they can be closed to their families.

We will have an incredible equal protection problem in the State of North Carolina with these small units spread across the State.

It is been our intention to keep the inmates close to home, it is been our intention to let them be where they could get work release jobs, study release jobs.

A situation like this could be counterproductive because we would be forced due to the sure expense of providing these facilities which are not available to the private citizen in the streets, which are not available to our judges, which are not available to DAs.

Quite frankly, our law library is the library at the Supreme Court of North Carolina, we in the Attorney General’s office, and just the two of us who handle this multiplicity of cases.

We do not have our own law library facility; we use the Supreme Court’s library at the sufferances of the Supreme Court of North Carolina.

They could enter an order any day saying that it is just for our own use.

Unknown Speaker: It happens at the County A way out in the woods, where the inmate does not have a library and the judge does not have a library and the State’s Attorney does not have a library.

Mr. Jacob L. Safron: They pick up the phone and call as Your Honor.

We run upstairs to the fifth floor and use the Supreme Court’s library.

Unknown Speaker: No, this is the way out.

Mr. Jacob L. Safron: Yes, your honor.

I mean if you want to -- that is exactly what happens.

They pick up the phone and they call us.

Unknown Speaker: So, if you are out -- (Inaudible) Asheville out there and you come all the way, you need to run.

Mr. Jacob L. Safron: No, I mean they pick up a phone and call.

Unknown Speaker: Who is they?

Mr. Jacob L. Safron: All of the judges, the District Attorneys.

Unknown Speaker: But, not the convicts?

Unknown Speaker: Does convict call, so?

Mr. Jacob L. Safron: No, the convict does not call, but I am saying, we do not have these facilities for our judiciary.

Unknown Speaker: I wonder if possibly your argument suggest that the solution might be if the two of you handle this whole line of litigation for the State, perhaps one or two lawyers to handle the other side of all this litigation might be an alternative that is less expensive then all these library facilities.

Mr. Jacob L. Safron: Your honor, that is of course, up to the General Assembly.

In their wisdom they make these decisions.

But we have a Novak v. Beto problem which should arise as in Texas where several attorneys were appointed and then the court found that those attorneys were insufficient and finally they had to have 15 attorneys.

I believe that was the number in Texas, because the Federal Court down there found that it took 15 attorneys to provide meaningful access.

15 attorneys compared to our staff is an incredible number.

Unknown Speaker: We have a case right here which says that in Texas they do not have any kinds of original filing.

Mr. Jacob L. Safron: Your honor, I know they are 15 lawyers.

Unknown Speaker: But, we have the case pending right now that --

Mr. Jacob L. Safron: I am not familiar with that aspect of that.

Unknown Speaker: Where the inmate filed the case and if the judge decides it has got merit then he lets the government know about the state.

Mr. Jacob L. Safron: Well, in Texas there are 15 lawyers that I know, and I also know that in Texas all the penal institutions are within ten miles of one another.

They have got them consolidated, so they can use common facilities and common resources.

Our facilities are not consolidated.

Unknown Speaker: How about the distance, don’t we have a geological (Inaudible)?

Mr. Jacob L. Safron: The state facilities your honor I must once made inquiry, I believe they are all in the panhandle there and they are all within one limited distance.

So, they have common resources as far as hospitals and ministration and things of that nature.

We are spread, we are spread across the map.

Unknown Speaker: Does your state have a limit on the number inmates to be confined in one institution, statutory limitation?

Mr. Jacob L. Safron: No, Your Honor we do not, and at this point in time quite frankly we are over crowded and we need all the money we can and we are trying to get all the money we can new institutions.

Unknown Speaker: And did you say 77 different institutions?

Mr. Jacob L. Safron: Well, up to time there were 77 and since then we have opened up a series of new halfway houses for women.

I do not know how many there are, but we have 77 main institutions or we have several main institutions in a series of subsidiaries spread across 475 miles.

Unknown Speaker: What is the total number of prisoners approximately?

Mr. Jacob L. Safron: I heard the last figure I saw unfortunately was like 13,350.

We are over crowded; we need money for new facilities, and the General Assembly has determined that all resources should be applied to other needs which they have determined to be more pressing than providing law libraries for prisoners.

Unknown Speaker: Are Prisoners with means limited to the use of the official library or may they buy their own book?

Mr. Jacob L. Safron: What official library Your Honor?

Unknown Speaker: Well, any official library.

Mr. Jacob L. Safron: Sorry, Your Honor, we do not have libraries in the prisons.

Unknown Speaker: Well then I will ask you, does the prisoner with means -- is he permitted to buy law books?

Mr. Jacob L. Safron: Oh, yes Your Honor.

Unknown Speaker: As many as he wants?

Mr. Jacob L. Safron: From the publisher.

Unknown Speaker: As many as he wants.

Mr. Jacob L. Safron: There maybe regulations prohibiting the absolute number as far as crowd in the cell is concerned, but I know inmates who have arrived at prison with like three cases of books and pleadings, and these things were kept stored for him.

There is a limit what can be kept in the cell obviously for saftey reasons and fire reasons.

Unknown Speaker: Are there law books available in the prisons?

Mr. Jacob L. Safron: As a practical matter there are, except to those --

Unknown Speaker: Well, how about the ones that prisoners themselves own?

Mr. Jacob L. Safron: Well those are available, yes Your Honor.

Unknown Speaker: And do you permit counseling between inmates?

Mr. Jacob L. Safron: Your honor that is the crux of this case.

We do not prohibit it and if we don’t prohibit it --

Unknown Speaker: I think your answer is yes.

Mr. Jacob L. Safron: Yes Your Honor.

Unknown Speaker: And is there enough books so that a counseling inmates will know what he is doing and --

Mr. Jacob L. Safron: Some of these counseling, in fact Your Honor I will say this, there is an association North Carolina writ writers, and those inmates, particularly the inmates here who file the suit.

They are prolific, many of them hold themselves out as professional writ writers and they sign the pleadings.

Unknown Speaker: One of them describes himself as legal assistant.

Mr. Jacob L. Safron: Yes your honor.

In fact, that case ultimately came here Bradford v. Weinstein case.

Unknown Speaker: So, you have suggested they just want to buy their books worth.

Mr. Jacob L. Safron: Exactly, Your Honor, and so that they could have a power base within the penal system.

They will really become powerful then they will be the men with the law books who will write over petitions.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Nakell.

Argument of Barry Nakell

Mr. Barry Nakell: Mr. Chief Justice and may it please the Court.

Younger against Gilmore was decided unanimously by this Court.

The decision was rendered after mature and thorough consideration and it was based on sound principles.

Unknown Speaker: Why do you say that?

Wasn’t that the summary affirmance?

Mr. Barry Nakell: No, Your Honor.

In fact, I had made that same mistake originally in my brief and opposition’s petition for certiorari, I made the same mistake.

I later learned that complete briefs were filed in the case and indeed that oral argument was held and actually the opinion indicates having heard the case on its merits.

Unknown Speaker: Well, it is just still just a one sense affirmance, isn’t it?

Mr. Barry Nakell: Yes, Your Honor.

The briefs show and the transcript to the oral argument shows that the issues in that case were carefully and thoroughly canvassed by the parties.

Unknown Speaker: I think whatever it might be our authority to re-examine but the Fourth Circuit had no choice under Hicks and Miranda but to follow.

Mr. Barry Nakell: That is that correct Your Honor certainly and I think that the Younger v. Gilmore case stands as a very substantial precedent for this Court as well because it was decided not summarily but after complete a briefing and argument, and indeed California in its jurisdictional statement and its brief presented all of the arguments that North Carolina has presented in this case with the exception of the argument based upon Ross v. Moffitt.

Unknown Speaker: But do you think that the question was in the Gilmore case there?

Mr. Barry Nakell: The question was, as stated in the jurisdictional statement filed by California the question was whether the State of California has a constitutional obligation to provide extensive law libraries for its inmates.

Unknown Speaker: But how could that be decided simply by citation Johnson v. Avery which is all that Gilmore cites?

Unknown Speaker: Why do not you finish the question that was presented.

Mr. Barry Nakell: That was the statement of the question in the jurisdiction statement.

Unknown Speaker: Let me read this from the jurisdictional statement.

Or alternatively, to provide inmates with professional or quasi-professional legal assistance?

Mr. Barry Nakell: I am sorry.

That is correct Your Honor.

That was then the alternative and that is the view that we take of the issue in this case that the ruling in Younger v. Gilmore the holding in Younger v. Gilmore permits, requires the state to provide either law libraries or a reasonable alternative in the form of legal services through lawyers or other professionals.

Unknown Speaker: Or wouldn’t they require lawyers, would it?

Mr. Barry Nakell: Not necessarily Your Honor.

Unknown Speaker: But what if there are reasonably confident fellow prisoners to serve the inmates.

Mr. Barry Nakell: If there were reasonably confident fellow prisoners, I would think Your Honor that the reasonably confident fellow prisoners would also need law books.

In order to be able to function in that role the law books would still be necessary.

Unknown Speaker: Well, they may have them on their own.

Mr. Barry Nakell: They may or may not, they may -- as I understood Mr. Safron to say that some prisoners bring law books to --

Unknown Speaker: No, it is not showing here that they do not have them, is there?

Mr. Barry Nakell: Neither, they are assuring that they do or what the extent of their books is.

Unknown Speaker: Well, who has got the burden, you or the State?

Mr. Barry Nakell: Well, Your Honor, the State has the burden of showing that it has provided an alternative.

We proved in the District Court that there were no law books.

The record shows that there were no law books in any of the prisons.

That is what the record shows.

The State did not --

Unknown Speaker: You mean State supplied law books.

Mr. Barry Nakell: Well, the record says no law books; it does not make a distinction.

There are no facts in the record to show that there are any law books or what the extent of them is provided by any person other than the state, including inmates.

I would grant that it is undoubtedly true that some inmates have some law books, but I certainly do not --

Unknown Speaker: Well, if at a particular prison there are writ writers or inmates with their own supply of law books, and they are reasonably confident, would you say the state’s duty is satisfied or not?

Mr. Barry Nakell: I believe that in Wolff v. McDonnell this Court --

Unknown Speaker: How about it, how about the --

Mr. Barry Nakell: But it may well be Your Honor; it may well be.

I think it would still depend upon question such as what if the writ writers released or parole the next day then that eliminates the problem.

Unknown Speaker: Well, I understand, but my question was if there is a writ writer there with his own law books, does that satisfy the state’s duty?

Mr. Barry Nakell: If that writ writer would measure up to the standard set by this Court in Wolff v. McDonnell where the Court --

Unknown Speaker: What is that Johnson v. Avery has got to do that question?

Mr. Barry Nakell: With Johnson v. Avery -- undoubtedly the facts of Johnson v. Avery were relatively narrow.

In that case, the court held that the state could not prohibit the operation of writ writers unless it provided some adequate alternative.

In defining what an adequate alternative might be in the suggestions of the majority made in --

Unknown Speaker: Doesn’t that suggest those other writ writers might satisfy a constitutional requirement?

Mr. Barry Nakell: Well, in so far as the prohibition of writ writers is concerned, I would quite agree that paralegals including inmate paralegals might satisfy the requirements even of Younger v. Gilmore, not alone of Johnson v. Avery, but there is no showing on this record that there is any such alternative available in the North Carolina prison system.

Justice William H. Rehnquist: Johnson was talking about a prohibition of availability, not an affirmative making available.

Mr. Barry Nakell: I agree Mr. Justice Rehnquist that that was what was involved in Johnson v. Avery and the Court held on the narrow facts of that case that it was illegal for the State, I believe it was Tennessee in that case, to prohibit writ writers without providing alternative.

I point out that the possible alternatives that the Court suggested that the state might implement in order if it wanted to cut out its writ writer system did not include providing law books.

Simply providing law books was not one of the alternatives but providing paralegals or lawyers --

Justice William H. Rehnquist: But in order to get any benefit from Johnson v. Avery, in this case, don’t you first have to show that North Carolina prohibits the availability of writ writers.

Mr. Barry Nakell: Your Honor, I think there will.

The answer to that question is --

Justice William H. Rehnquist: And you made that showing.

Mr. Barry Nakell: No Your Honor, no.

Justice William H. Rehnquist: So you so not get any backup from Johnson against Avery here?

Mr. Barry Nakell: Well we do, because we do not from the specific holding in Johnson against Avery.

Younger against Gilmore went a step beyond Johnson v. Avery in terms its specific holding.

Justice William H. Rehnquist: Well now you say Younger against Gilmore went beyond Johnson v. Avery.

Yet, it is a one sentence affirmance and the only case that cites on the merits is Johnson v. Avery.

Mr. Barry Nakell: Yes Your Honor.

I think that was appropriate because underlying the majority opinion in Johnson v. Avery was the statement that a prisoner has a constitutional right to help in regard to his access to the courts.

The majority said this and Mr. Justice White in his separate opinion in dissent, elaborated even further on that and expressly said that without some help, the prisoner is affectively barred from access to the courts.

On that rationale, which was the rationale that supported the opinion in Johnson v. Avery, I think the Court in and Younger v. Gilmore was entitled to rely.

Chief Justice Warren E. Burger: But you do not challenge your friend’s statement that as soon as this procedure gets under way counsel is provided for the prisoners.

Is it correct.

Has he correctly described it in your view?

Mr. Barry Nakell: As soon as a post conviction procedure gets under way.

No, I did not understand he described it that way either --

Chief Justice Warren E. Burger: He said on the appeal, as soon as it is denied.

Mr. Barry Nakell: Well, frankly Mr. Chief Justice, I must say that I have no independent knowledge of whether a prisoner who is denied the right to proceed with a post conviction proceeding and he was denied counsel for that proceeding would be provided counsel on appeal.

All I can say is that I do know that the plan that the State of North Carolina submitted to LEAA assumed, at Page 3 (a) of my brief, assumed that in order to get counsel a prisoner would have to submit a petition which on its face has some merit.

And also the Judge Larkin who is probably more familiar than I in the District court with this procedure also said that like the federal courts there is not right to counsel in the state post conviction proceedings unless counsel is appointed.

I quite agreed that the statute seems to provide for it, but I understand Mr. Safron agreed that it is not done at the trial level where the statute seems to provide for, and quite frankly I do not considered myself qualified to speak as to whether it has done on appeal.

I had always assumed that it was not and they do not look to see whether there is anything to the contrary.

I do not know the answer to that.

But it is clear that the inmate receives no help in the preparation of his petition at the initial stage and he certainly receives no help at any point through the petition unless the court decides to appoint counsel to represent him.

Let me say that this petition for certiorari is just what it sounds like.

There is no right to appeal from the denial of post conviction writ in North Carolina.

It is a discretionary review, and therefore even if the application had some merit the court may deny for reasons that have nothing to do with the intrinsic merit.

Unknown Speaker: Where do you go, the Intermediate Court of Appeals?

Mr. Barry Nakell: The Intermediate Court of Appeal, not as far as you can go, you cannot go any higher than that on a post conviction proceeding.

Unknown Speaker: And may it be managed by less or full number of judges of that court?

Mr. Barry Nakell: I am not sure of the answer to that.

They sit in panel, so I assume that it could be done by a majority of panel, but I am quite frankly not certain --

Unknown Speaker: Well I know but here cert has granted on both (Inaudible) or anything like that?

Mr. Barry Nakell: No not as far as I know your honor, not as far as I know.

Justice John Paul Stevens: Counsel, do you recall going back to Younger v. Gilmore for a minute, whether in that case the California system had ruled against one writ writer helping another prisoner?

Mr. Barry Nakell: It is clear Mr. Justice Stevens that California did not.

In Footnote 1 of its opinion of Three-Judge Court it stated that California did not prohibit writ writers, and therefore I think on the facts Younger v. Gilmore is precisely the same as this case.

Justice Byron R. White: Well, what is the holding in the District court at least California as it provides either legal research facility or lawyer or lawsuits?

Mr. Barry Nakell: The District court actually --

Justice Byron R. White: It didn’t say that the fellow inmates would be enough to this?

Mr. Barry Nakell: Well the District court ordered -- that is correct Your Honor that is correct that they did not consider writ writers, follow inmates to be enough.

In the circumstance of that case where there was no evidence that should be taken into account that as in this case there was no evidence that the writ writers were adequate.

Now, I might point out Mr. Justice White in regard to your interest about the use of inmate writ writers that the plan submitted by the State and approved by the District court which is the part of the order in this case thus provide for the training and use of inmate paralegal assistance.

I believe the plan provides for the training and use of about 21 of them.

In this way the State would have a way of guaranteeing or assuring that there are writ writers available on the premises who would be in a position to assist the prisoners, and of course, the plan is very carefully drawn to take account of the nature of the North Carolina prison system far-flung nature of it, so that it provides that only libraries have to provided to only seven of the prisons.

The plan itself calls for additional five core libraries.

It also provides for a Xerox machines to be available at the Raleigh library which would probably be a central prison.

Chief Justice Warren E. Burger: Would you say that, that plan was submitted by the State?

Mr. Barry Nakell: Submitted by the State, that is correct Your Honor, and quite frankly we found as to those aspects of it that it was acceptable and we did not ask to have a law library in every one of the 80 or so prison units.

We were perfectly amenable to the reasonable compromise in terms of the numbers of libraries.

I might say that this is far less than many professional correctional administrators have recommended.

It is far less than the National Advisory Commission recommended.

Chief Justice Warren E. Burger: Well, of course you are talking about a constitutional question and those recommendations have very little, if any, relevance on what is a good policy as contrasted with what is constitutionally required?

Mr. Barry Nakell: I agree with that Your Honor.

To the extent that we are concerned with the exercise of discretion or the exercise of the expertise by the prison administrators, it is helpful I think to look at what other prison administrators have thought.

Chief Justice Warren E. Burger: How can you justify having anything less than the same scope of library facilities in every institution in the State?

Mr. Barry Nakell: Because Mr. Chief Justice, the State of North Carolina in its plan has made provision for being able to assure that all inmates have equal access to the library facilities of the seven prisons.

There are alternative methods prisoners may be brought into the present facility to have libraries if they request to use the library and may be house there overnight if necessary according to the plan.

Moreover, there is provision for a Xerox machine to be maintained at the central prison, the library in Raleigh, wherever that is ultimately situated, so that any prisoner upon request could get copies of specific cases if were possible to serve his needs without providing him the use of the entire library.

So that, I believe that is very possible with the seven main libraries and five core libraries and the Xerox machine that this can be implemented in such a way that all prisoners at all institutions will have equal access to the library facilities and will have meaningful access to legal materials to assist them in their constitutional right to access to the court.

Justice Byron R. White: What provision of the Constitution as if that provides the right to law libraries for prisoners?

Mr. Barry Nakell: Well, Your Honor I believe it based -- and the right is not as Mr. Justice White pointed out, not strictly for law libraries but the right is for some help from the prison --

Justice Byron R. White: Tell me what provision of the Constitution.

Mr. Barry Nakell: Well, Your Honor in different occasion of this Court has identified it as ensuing from First Amendment right to petition for readdress grievances, the Due Process Clause --

Justice Byron R. White: What case was that?

Mr. Barry Nakell: Johnson v. Avery.

I believe that there have been other authority which have discussed it as well.

I think the one where this Court has talked about, the one basis, constitutional basis for this Court, has talked about most recently in Procunier v. Martinez this Court identified the Due Process Clause as the source of it.

Also, of course, in Younger v. Gilmore both the Due Process Clause and the Equal Protection Clause were cited as the constitutional source for the constitutional right of prisoners to access to the courts.

Justice Byron R. White: In this Court’s opinion?

Mr. Barry Nakell: Well, this Court did not specify.

This Court’s opinion was very brief, but it was in the opinion of the Three-Judge Court.

Justice Byron R. White: Would this right extend to the right of inmates, if the next step, every inmate, they have the lawyer to interpret the cases he finds in the laws books for him?

Mr. Barry Nakell: No Your Honor I do not believe that, that would be necessary.

I think that what is required is that the prisoners have a right, a constitutional right to meaningful access to the courts, and I believe that this is a flexible standard.

In Ross v. Moffitt this Court held that there was no right to counsel on petitioning for discretionary review and discussed both due process and equal protection in the course of that opinion, but due process, as the Court pointed out, is a concept of fairness, and fairness may be flexible.

So that, whereas counsel would not be required something less, something other than counsel might be required.

I think the decision in Ross v. Moffitt makes legal research facilities even more important.

Justice Byron R. White: Well, what if an inmate comes in the court and says, I have had a second grade education, my IQ is 85.

It is true that the State of North Carolina furnishes a lot of law books but I simply an incapable of reading it.

I am being denied a right that others who are better able to read the law book have.

So, I want a lawyer.

What is your response to that kind of case?

Mr. Barry Nakell: That certainly was the very special concern of this Court when it decided Johnson v. Avery, who was illiterate and uneducated inmate, and the Court there was specifically talking about his constitutional right to have.

Mr. Justice White in his dissenting opinion expressed the view that we should not necessary just allow writ writers to operate and forbid the states from prohibiting them, but we should do something about providing this kind of help.

Justice Byron R. White: What is your answer to the question, does the Constitution require the State of North Carolina to furnish a lawyer to this particular person, I have hypothesized --

Mr. Barry Nakell: Well, there again, not necessarily a lawyer Your Honor but something else, and I think that the provision in this plan for the training and use of about 21 inmate paralegals would satisfy that requirement.

Justice Byron R. White: Do you say that the State of North Carolina has constitutionally obligated to furnish him a trained paralegal?

Mr. Barry Nakell: It has constitutionally obligated to provide him some form of help and that is up to the State in the first instance to decide what the help should be.

Unknown Speaker: Well okay.

Is it or is it not obligated to furnish him a qualified lawyer?

Mr. Barry Nakell: Not necessarily.

Unknown Speaker: Is it or is it not obligated to furnish him a trained paralegal?

Mr. Barry Nakell: Well, I would think that something in that area would be reasonable.

Unknown Speaker: Something in that area, what do you mean by that?

Mr. Barry Nakell: Well, my point in not addressing myself specifically what the requirement is Your Honor is simply that I want to emphasize that the District Court in this case took the position that the method of complying with the constitutional requirement was up to the State, and left it to the State as the Court did in Younger v. Gilmore to decide exactly how to satisfy the constitutional requirement.

The State may find some other way to do it.

Unknown Speaker: Well, supposing that this same question comes up before Judge Larkin again and we have this situation I have hypothesized to you.

Now, what is going to be your answer and response put a petition in the court or your answer if you are the judge?

Mr. Barry Nakell: Hopefully, if the Court affirms the order of the Court of Appeals, my answer would be that the trained inmate paralegals would satisfy this requirement.

Well there is something else we do --

Unknown Speaker: It is not constitutionally required.

Mr. Barry Nakell: That something is constitutionally required and this might --

Unknown Speaker: What is something?

Not a lawyer and you say perhaps not a trained paralegal here.

Mr. Barry Nakell: Well, there may be some other way of being able to accomplish?

Unknown Speaker: Can you think of any?

Mr. Barry Nakell: Well, possibly the use of employees maybe able to -- employees who are trained and perhaps they would be characterized as paralegals as well to help him.

I am not sure that I necessarily can and I would think that trained paralegals as a minimum would be required, but there may be a way that the State could formulate to provide this kind of help without doing that, and the matter would be left to the State to formulate I think.

The District Court in this case hew to that and I think properly so, left it up to the State to formulate the plan and the plan that we have for review now is the plan submitted by the State.

I might say with --

Unknown Speaker: Pursuant to the District Court’s requirement, is it not?

Mr. Barry Nakell: Yes, of course, but certainly it is clear that the -- my point is simply that the District Court and the Court of Appeals do not themselves undertake to make the decision, otherwise they have made clear that if the decision were up to them, they would have provided legal counsel.

I think they both gave an indication that they would find that to be a preferable system.

I might point out that the great success in Younger v. Gilmore has been a great success, and the great success that is enjoyed in my judgment is due in large part to the use of trained inmate paralegals.

The literature has shown that the training programs for inmate paralegals has been very successful, indeed the State of Michigan just graduated its first class of inmate paralegals last week with a major graduation ceremony presided over by the Chief Justice of the State.

Those jurisdictions that have used inmate paralegals have found them to be very, very useful, and this in my judgment is really the secret to why these programs have been so successful, far more successful than we would expect law books alone to be, and people have been surprised by how well inmate paralegals have functioned.

Indeed we see many prison systems have gone on to training their employees who then also serve to help prisoners.

Unknown Speaker: Do you have any comment on your opposition’s suggestion that, that creates a powerbase for the inmate paralegal?

Mr. Barry Nakell: Well, Your Honor, I want to make -- I think it is clear that the State in its brief at least advanced no contention that there would be any interference with its management function or security function or rehabilitation function in the prison by this.

Unknown Speaker: But the statement was made here today.

Mr. Barry Nakell: Now they say that -- well, I think that is inconsistent first of all with their basic premise that the way that they meet Johnson v. Avery is by letting writ writers operate in the prison, and I think that once we put the libraries in the prison it is going to diminish the powerbase of writ writers because it is going to make legal research facilities available generally and not just to the writ writers.

Moreover, the plan provides for very limited access to the libraries.

The plan contemplates the 350 prisoners will be able to use the libraries a week, and that will mean that a person will have to wait three to four weeks to get his turn in the library for a day.

Writ writers are not going to be able to flourish under that system any better than they can under the present system where a few people may have access to the only and very, very limited legal information that is available.

So, there is nothing in this plan that would facilitate the flourishing of inmate writ writers or the development by them of the powerbase.

Unknown Speaker: Just to be sure, and I want to nail this down for my own purpose, you are not attacking in any way the constitutionality of the plan that is submitted?

Mr. Barry Nakell: No, Your Honor, no.

We would be perfectly satisfied to have the Court approve the plan as it was approved by the District Court with minor modifications and by the Court of Appeals with one minor modification.

We would, I might say, be very pleased to entertain some suggestion about providing counsel because we think that would be better, but we would recognize that the constitutional obligation under Younger v. Gilmore is satisfied by the plan that we have.

The American Correctional Association --

Unknown Speaker: Let me just interrupt there, since you referred to that.

Would you also agree that the library facilities would perhaps no longer be constitutionally required if there were no alternative programs such as Student Lawyers of some kind or other outside the prison system?

Mr. Barry Nakell: I would agree.

Unknown Speaker: Let me ask you this also while I have interrupted you.

In the Younger case, as I remember it, there was the California system did allow some access by the prisoners to the state law library as to a challenges that has not been adequate.

Is that true in North Carolina that the prisoners have any access to the state law library?

Mr. Barry Nakell: No, there is no state law library as such.

There are law libraries at the Supreme Court and at the state law schools, and as I understand they maybe able to get cases from the libraries at the Supreme Court or the state law library if they pay 10 cents a page.

I believe that is the going rate, 10 cents a page.

Unknown Speaker: You have just responded that this alternative we are provided then libraries would not be necessary.

What if someone comes in and points out that in Faretta v. United States, I think it was the Court held that every individual has the right to represent himself as his own counsel, and we have such a person in the prison says under Faretta, “I want to be my own counsel.

Therefore, I must be furnished with all of the facilities that I need, even though I am the only one out of the 2000 prisoners here who wants to do it this way.”

Mr. Barry Nakell: First, Your Honor we are talking about the North Carolina prison system where people are placed generally -- there are few people place their pending trial, but generally people who have already been convicted to the stage.

Secondly, in term --

Unknown Speaker: What I am talking about is that if Faretta gives the person a right to represent himself in the trial of the case, would it not fall a matter of courts that he would be entitled to represent himself in anything less than the trial of a contested criminal case.

Mr. Barry Nakell: Yes, I would assume so Your Honor.

Unknown Speaker: Then, what happens to your answer to Mr. Justice Stevens?

Mr. Barry Nakell: Well, Mr. Justice Stevens, of course, raised the question of whether counsel is necessary, whether counsel would be an adequate substitute, and if counsel were provided and a prisoner do not want to take advantage of the provision that was made, I think the obligation of the State would be satisfied, because the obligation of the State is not to do whatever is necessary in order to satisfy the inmate, but is only to do whatever is necessary or reasonably necessary in order to assure the inmate’s access to the courts.

Because a particular prisoner might prefer a different method, and I can imagine prisoners even not in that situation, prisoners who are in post conviction or 1983 actions, or civil right actions in State Court, who would prefer to have a library rather can counsel.

That personal preference of the inmate in that circumstance would not control I think; it is not a Faretta type situation at all.

It is a situation in which the State’s obligation is not to provide, necessarily to provide counsel, but is only to provide the means reasonably necessary in order to ensure the prisoner meaningful access to the court.

That is a different standard than the standard that applies in situations where the inmate would be entitled to the right counsel, and therefore I do not see any problem or conflict in that particular circumstance.

I would like to say that the American Correctional Association in May of this year, development I learned about since filing my brief, came out with a statement of responses to the National Advisory Commission recommendations, and they either accepted or rejected or modified the recommendations.

They with regard to the National Advisory Commission recommendation for access to legal services, they accepted that which would provide for a library equivalent to what is provided for in the State’s plan in every prison with a design capacity of 100 or more.

Unknown Speaker: Of course, they are addressing themselves to question of policy and procedure not to the Constitution.

Mr. Barry Nakell: That is absolutely correct Your Honor.

I just think the Court should be informed about the opinions of professional correctional administrators and --

Unknown Speaker: Now, as far back as ten or twelve years ago, some of us were parties to a program that advocated and carried out on appellate basis, circuit writing lawyer, not law students, circuit writing lawyer who would periodically show up to prison to help prisoners.

That is -- you would not regard that as a commitment on the constitutional issue, would you?

Mr. Barry Nakell: No, Your Honor just because it is done, but not necessarily be a commitment on the constitutional issue.

But I think that is important to know as Mr. Justice Blackmun brought out I think that even the State of North Carolina has taken the position that meaning access to the courts for prisoners requires that they would be given access at least to legal services.

This was in the LEAA grant application.

I understood Mr. Safron to characterize, that is as puffing or as salesmanship or saying whatever was necessary to get an LEAA grant.

The only question is whether the State would also say whatever is necessary in order to get an order from this Court.

The State has taken the position that this is necessary and that it will have the collateral effects which have been experienced in many other states, that is, it has reduced the number of frivolous petitions and has increased the quality of petitions and all the other states have implemented it.

Unknown Speaker: I understand the State’s position that it is necessary because it was required by an action of a District Court.

That it not what they said to the --

Mr. Barry Nakell: At their grant application.

Unknown Speaker: Yeah, that because it set before.

Mr. Barry Nakell: Well, I assume that their petitions --

Unknown Speaker: Would there be a filing without that decision?

Mr. Barry Nakell: Well, I can not say that there would, I would agree with that, but of course their petition and their brief in this case were necessitated by the same District Court order.

Unknown Speaker: Well, don’t we have to consider in that light, an application to the LEAA, don’t we?

Mr. Barry Nakell: Well, I think so.

Unknown Speaker: Well, we accept the fact that they have made it after the Court’s decision.

Mr. Barry Nakell: That is correct.

I think that the LEAA application of course has another important factor that bears on our case, and that is the State has represented that the cost factor, meeting the District Court’s order or meeting the plan that they themselves proposed, would require a distribution, a redistribution of services from something else that the Department of Corrections is providing.

The LEAA application shows that the State was planning all this time to apply to the Federal Government for 90% funding of the initial cost and 90% funding of the expenses for the first couple of years of the program, and that they have every reasonable expectation of being funded in that way because LEAA has funded other programs and indeed has funded programs to greater sums of money, particularly program which have gone on beyond Younger v. Gilmore and provided legal services to varying degrees including many states which you have provided legal services in a comprehensive manner.

We just do not agree that the State of California -- State of North Carolina, excuse me, in this case can not afford to meet its prisoners’ constitutional needs in this respect.

On June 30, 1975 the fiscal year ending then, the State of North Carolina -- excuse me, my time is up.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.