Procunier v. Martinez Brief for Appellees
Public Court Documents
October 12, 1973
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Brief Collection, LDF Court Filings. Procunier v. Martinez Brief for Appellees, 1973. 5ce2ac99-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/241b991e-e5e2-49be-ad65-55ebc0f280a5/procunier-v-martinez-brief-for-appellees. Accessed May 08, 2025.
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IN THE
SUPREME COURT OF THE UNITE
OCTOBER TERM, 1973
No. 72-1465
OST rt, U. S.
E D
OCT 12 1973
RAYMOND K. PROCUNIER, DIRH d f R0DAX- JR«CLERK
CALIFORNIA DEPARTMENT OF
CORRECTIONS, e ta l,
v.
ROBERT MARTINEZ and
WAYNE EARLEY, e ta l,
Appellants,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF FOR APPELLEES
WILLIAM BENNETT TURNER
LOWELL JOHNSTON
JULIAN FOWLES
12 Geary Street
San Francisco, California 94108
ALICE DANIEL
University of California
Hastings College of the Law
198 McAllister Street
San Francisco, California 94102
MARIO OBLEDO
SANFORD JAY ROSEN
Mexican American Legal Defense
and Educational Fund, Inc.
145 Ninth Street
San Francisco, California 94102
ANTHONY G. AMSTERDAM
Stanford Law School
Stanford, California 94305
JACK GREENBERG
JAMES M. NABRIT, III
STANLEY A. BASS
10 Columbus Circle
New York, New York 10019
Attorneys for Appellees
Washington, D C. • C LB P U B L IS H E R S . INC. • (2021 393 0625
(it
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED........................................................... ' 1
STATEMENT OF THE CASE ................................................... 2
A. Further Proceedings in the Court Below ................ 2
B. Statement of F a c t s ...................................................... 2
1. Mail Censorship..............................* ..................... 2
2. Law Student and Paraprofessional
Investigators for Attorneys ................................. 7
SUMMARY OF ARGUMENT........................................................ 10
ARGUMENT:
I. THE DISTRICT COURT DID NOT ERR IN
D E C L IN IN G TO ABSTAIN FROM
DECIDING ONE OF THE TWO FEDERAL
CONSTITUTIONAL QUESTIONS PRE
SENTED, AND ABSTENTION SHOULD
NOT BE ORDERED NOW ................................................ 14
A. The District Court Was Not Required
Initially To Abstain ................................................... 14
1. Abstention is not required simply
because regulations are challenged and
invalidated, in part, on the ground of
vagueness .............................................................. 15
2. Penal Code §2600(4) is not fairly
subject to a construction that would
avoid or modify the constitutional
question ................................................................. 18
3. There is no clearly available com
parable state remedy ........................................... 21
B. Abstention Should Not Be Ordered Now .............. 22
( i i )
II. THE DISTRICT COURT PROPERLY IN
VALIDATED APPELLANTS’ FORMER
MAIL CENSORSHIP REGULATIONS, AND
THE NEW REGULATIONS APPROVED BY
THE COURT BELOW FULLY PROTECT
EVERY LEGITIMATE INTEREST OF AP
PELLANTS ......................................................................... 23
III. THE DISTRICT COURT PROPERLY IN
VALIDATED APPELLANTS’ FORMER AB
SOLUTE PROHIBITION AGAINST USE BY
ATTORNEYS OF LAW STUDENT OR
PARALEGAL INVESTIGATORS TO IN
TERVIEW PRISONERS ON THEIR BE
HALF, AND THE NEW REGULATION
APPROVED BY THE COURT BELOW
FULLY PROTECTS EVERY LEGITIMATE
INTEREST OF APPELLANTS ...................................... 44
CONCLUSION ................................................................................. 57
TABLE OF AUTHORITIES
Cases:
Adams v. Carlson, ___ F.2d___ , 13 Cr. L. Rptr.
2532 (7th Cir. Aug. 23, 1973) ................................................ 47
Adams v. Carlson, 352 F.Supp 882 (E.D. 111. 1973) . . 25, 30,41
Argersinger v. Hamlin, 407 U.S. 25 (1972) ................................. 52
Arif v. McGrath, No. 71-V-1388 (E.D. N.Y. Dec. 9,
1 9 7 1 ) .............................................................................................. 55
Bachellar v. Maryland, 397 U.S. 564(1970) .............................. 33
Baggett v. Bullitt, 377 U.S. 360 (1 9 6 4 ) ................................... passim
Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 1 9 6 9 ) .............. 26, 40
Blount v. Rizzi, 400 U.S. 4 1 0 ( 1 9 7 1 ) ............................... 2 5 ,2 8 ,3 8
Boddie v. Connecticut, 401 U.S. 371 ( 1 9 7 1 ) ........................ 47, 48
Brandenburg v. Ohio, 395 U.S. 444 ( 1 9 6 9 ) .................... 2 8 ,3 2 ,3 9
Brenneman v. Madigan, 343 F.Supp. 128 (N.D. Cal.
1 9 7 2 ) ........................................................................................... 32
Broadrick v. Oklahoma, ___ U .S .____ , 41 U.S.L.W.
5111 (1973) ................................................................. 17 ,2 8 ,3 5
Brown v. Chote, 411 U.S. 452 (1973) ........................................ 14
Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1 9 7 1 ) ...................... 41
Burnham v. Oswald, 342 F.Supp. 880 (W.D. N.Y.
1 9 7 1 ) ............................................................................................ 38
Carothers v. Follette, 314 F.Supp. 1014 (S.D. N.Y.
1 9 7 0 ) ................................................................ 2 0 ,2 6 ,3 0 ,3 2 ,4 0
Gutchette v. Procunier, 328 F.Supp. 767 (N.D. Cal.
1 9 7 1 ) ................................................................................ 5 ,2 0 ,2 5
Coleman v. Peyton, 362 F.2d 905 (4th Cir.) cert.
denied, 385 U.S. 905(1966) 50
Connally v. General Construction Co., 269 U.S. 385
(1926) ......................................................................................... 37
Cooper v. Pate, 378 U.S. 546 ( 1 9 6 4 ) ...................................... 21 ,26
Cox v. Louisiana, 379 U.S. 536 (1 9 6 5 ) ......................................... 35
Cross v. Powers, 328 F.Supp. 899 (W.D. Wis. 1971) ........... 47, 55
Cruz v. Beto, 405 U.S. 319 (1 9 7 2 ) ................................................. 26
Damico v. California, 389 U.S. 416 ( 1 9 6 7 ) ................................. 21
Dombrowski v. Pfister, 380 U.S. 479 ( 1 9 6 5 ) .............................. 15
Douglas v. California, 372 U.S. 353 ( 1 9 6 3 ) ................................. 48
Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D.
N.Y. 1970) ............................................................................ 26 ,3 0
Freedman v. Maryland, 380 U.S. 51 (1 9 6 5 ) ................................. 38
Gates v. Collier, 349 F.Supp. 881 (N.D. Miss. 1 9 7 2 ) ................ 43
Gilmore v. Lynch, 319 F.Supp. 105 (N.D. Cal. 1970),
affd sub nom. Younger v. Gilmore, 404 U.S. 15
(1971) ....................................................................... 2 5 ,4 8 ,4 9 ,5 2
Goldberg v. Kelly, 397 U.S. 254 ( 1 9 7 0 ) ................................. 25, 37
Goodwin v. Oswald, 462 F.2d 1237 (2d Cir. 1 9 7 2 ) .............. 32, 40
(Hi )
Graham v. Richardson, 403 U.S. 365 ( 1 9 7 1 ) ................ .. 25
Gray v. Creamer, 465 F.2d 179 (3d Cir. 1 9 7 2 ) ...................... 25, 26
Grayned v. City of Rockford, 408 U.S. 104 (1 9 7 2 ) ..............passim
Griffin v. Illinois, 351 U.S. 12 (1 9 5 6 ) ........................................... 48
Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex.
1 9 7 2 ) .............................................................................. 3 2 ,3 8 ,4 2
Haines v. Kemer, 404 U.S. 519(1972) ...................................... 20
Harman v. Forssenius, 380 U.S. 528 (1 9 6 5 ) ................................. 19
Healy v. James, 408 U.S. 169 ( 1 9 7 2 ) .............................. 27, 39, 40
Hillery v. Procunier,____F.Supp.____ , No. C-71
2150 S.W. (N.D. Cal. Aug. 16, 1973) .............................. 26, 40
Hooks v. Wainwright, 352 F.Supp. 163 (M.D. Fla.
1 9 7 2 ) ............................................................................................ 52
Houghton v. Shafer, 392 U.S. 639 (1968) ................................. 20
Ex parte Hull, 312 U.S. 546(1941) 47
Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968) .............. 26, 40
Johnson v. Avery, 393 U.S. 483 (1969) ................................... passim
Jones v. Metzger, 456 F.2d 854 (6th Cir. 1 9 7 2 ) ........................ 20
Jones v. United States, 357 U.S. 493 ( 1 9 5 8 ) .............................. 14
In re Jordan, 7 Cal.3d 930, 500 P.2d 873 ( 1 9 7 2 ) ------ 1 8 ,2 2 ,5 0
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1 9 5 2 ) ................ 36
Kaufman v. United States, 394 U.S. 217 (1 9 6 9 ) ......................... 47
Keyishian v. Board of Regents, 385 U.S. 589 (1 9 6 7 ) ............ passim
Laaman v. Hancock, 351 F.Supp. 1265 (D. N.H. 1 9 7 2 ) ........... 38
Lake Carriers’ Association v. MacMullan, 406 U.S.
498(1972) ................................................................................. 19
Lamar v. Kern, 349 F.Supp. 222 (S.D. Tex. 1 9 7 2 ) ................... 42
Lamont v. Postmaster General, 381 U.S. 301 (1 9 6 5 ) ................ 25
Landman v. Peyton, 370 F.2d 135 (4th Cir. 1 9 6 6 ) ................... 35
( iv)
Landman v. Royster, 333 F.Supp. 621 (E.D. Va. 1971) 25, 37, 47
Lanzetta v. New Jersey, 306 U.S. 451 (1939) ........................... 37
Law Students Civil Rights Research Council v.
Wadmond, 401 U.S. 154(1971) ........................................... 17
LeVier v. Woodson, 443 F.2d 360 (10th Cir. 1971) ................ 50
Lewis v. Kugler, 446 F.2d 1343 (3rd Cir. 1 9 7 1 ) ........................ 20
Undsey v. Normet, 405 U.S. 5 6 (1 9 7 3 )........................................ 19
Longv. Parker, 390 F.2d 816 (3d Cir. 1 9 6 8 ) .............................. 32
McDonnell v. Wolff, ___ F .2 d ___ , No. 72-1331
(8th Cir. Aug. 2, 1973) .........................................40, 47, 50, 55
McNeese v. Board of Education, 373 U.S. 668 (1963) ........... 21
Marsh v. Moore, 325 F.Supp. 392 (D. Mass. 1 9 7 1 ) ................... 50
Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972) ........................ 55
Milwaukee Social Democratic Publishing Co. v.
Burleson, 255 U.S. 407 (1921) .............................................. 25
Monroe v. Pape, 365 U.S. 167(1961) ......................................... 21
Mooney v. Holohan, 294 U.S. 703 (1 9 3 5 ) ................................... 47
Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972) ...................... 50
Morales v. Turman, 326 F.Supp. 677 (E.D. Tex. 1 9 7 1 ) ........... 50
Morris v. Affleck, No. 4192 (D. R.I. April 20, 1972) .............. 30
Morrissey v. Brewer, 408 U.S. 471 (1 9 7 2 ) .............................. 25, 37
NAACP v. Alabama ex rel. Flowers, 377 U.S. 288
(1964) .................................................................................... 28 ,37
NAACPv. Button, 371 U.S. 4 1 5 ( 1 9 6 3 ) ......................... 2 8 ,3 4 ,3 6
Neal v. State o f Georgia, 469 F.2d 446 (5th Cir.
1 9 7 2 ) ............................................................................................ 25
Near v. Minnesota, 283 U.S. 697 ( 1 9 3 1 ) ................................. 29, 30
New York Times v. Sullivan, 376 U.S. 254 (1964) ................... 29
Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971) .2 5 , 26, 30, 32
( V)
Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1 9 7 0 ) ...................... 47, 50
Novak v. Beto, 453 F.2d 661 (5th Cir. 1 9 7 1 )........................ 52, 55
O’Malley v. Brierley, 477 F.2d 785 (3rd Cir. 1 9 7 3 ) .............. 26 ,40
Organization for a Better Austin v. Keefe, 402 U.S.
415(1971) ................................................................................. 38
Palmigiano v. Travisono, 317 F.Supp. 776 (D. R.I.
1 9 7 0 ) .......................................... 2 5 ,2 6 ,3 0 ,3 2 ,4 3
Papachristou v. City o f Jacksonville, 405 U.S. 156
(1972) 36 ,37
Pickering v. Board of Education, 391 U.S. 353 (1968) . . . . 29, 39
Pierce v. LaVallee, 293 F.2d 233 (2d Cir. 1 9 6 1 ) ........................ 20
Police Department of Chicago v. Mosley, 408 U.S. 92
(1972) ............................................................................ 3 3 ,3 7 ,4 0
Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827
(1973) .................................................................................... 20,21
Price v. Johnston, 334 U.S. 266 (1948) ...................................... 26
Remmers v. Brewer, 475 F.2d 52 (8th Cir. 1 9 7 3 ) ...................... 26
Reetz v. Bozanich, 397 U.S. 82 (1 9 7 0 ) ......................................... 19
Rivers v. Royster, 360 F.2d 592 (4th Cir. 1 9 6 6 ) ........................ 20
Rowland v. Sigler, 327 F.Supp. 821 (D. Neb. 1971),
a ff d sub nom. Rowland v. Jones, 452 F.2d 1005
(8th Cir. 1971) 26 ,40
Shelton v. Tucker, 364 U.S. 479 ( 1 9 6 0 ) ................................. 37, 40
Shelton v. Union County Board of Commissioners,
___ F.2d___ , No. 71-151 (7th Cir. 1973) .......................... 20
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) ................. 35
Smith v. California, 361 U.$. 147 (1959) ................................... 34
Smith v. Robbins, 454 F.2d 696 (1st Cir. 1 9 7 2 ) ........................ 50
Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971),
cert, denied sub nom. Sostre v. Oswald, 404 U.S.
1049 (1971)
(v i )
30, 32, 33
Sostre v. Otis, 330 F.Supp. 941 (S.D. N.Y. 1 9 7 1 ) ...................... 38
Speiser v. Randall, 357 U.S. 513 ( 1 9 5 8 ) ........................ 2 8 ,3 4 ,3 8
Stapleton v. Mitchell, 60 F.Supp. 51 (D. Kan. 1 9 4 5 )................ 21
Stevenson v. Mancusi, 325 F.Supp. 1028 (W.D. N.Y.
1 9 7 1 ) ........................................................................................... 53
Tacon v. Arizona, 410 U.S. 351 (1973) ...................................... 14
State ex rel. Thomas v. State of Wisconsin 55 Wis.2d
343, 198 N.W.2d 675 (1972) .............................. 25, 26, 30, 40
Thornhill v. Alabama, 310 U.S. 88 (1 9 4 0 ) .............................. 28, 36
Tinker v. Des Moines School District, 393 U.S. 503
(1969) ............................................................................ 2 7 ,3 9 ,4 0
In re Tucker, 5 Cal.3d 171 (1971) .............................................. 52
United Mine Workers v. Illinois State Bar Association,
389 U.S. 217(1967) ................................................................. 56
United States v. Kras, 409 U.S. 434 (1973) .............................. 47
United States v. Livingston, 179 F.Supp. 9 affd, 364
U.S. 281 ( 1 9 6 0 ) ......................................................................... 19
United States v. O’Brien, 391 U.S. 367 (1968) ........................ 40
United States v. Robel, 389 U.S. 258 (1967) .............. 28, 37 ,40
United States v. Savage, __ F .2d ___ , No. 72-3145
(9th Cir. Aug. 8, 1 9 7 3 ) .............................................................. 40
United States Civil Service Commission v. National
Association of Letter Carriers, ___ U .S .____ , 41
U.S.L.W. 5 1 2 2 ( 1 9 7 3 ) .............................................................. 35
Van Erman v. Schmidt, 343 F.Supp. 337 (W.D. Wis.
1 9 7 2 ) ........................................................................................... 55
Wainwright v. Coonts, 409 F.2d 1337 (5th Cir. 1 9 6 9 ) .............. 55
Wilwording v. Swenson, 404 U.S. 249 (1971) ............................. 20
Worley v. Bounds, 355 F.Supp. 115 (W.D. N.C. 1 9 7 3 )------ 30, 41
Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) ...................... 20
Yarish v. Nelson, 27 Cal. App.3d 893, 104 Cal. Rptr.
205 (1972) 18
Younger v. Gilmore, 404 U.S. 15(1971)
Zwickler v. Koota, 389 U.S. 241 (1967)
4 8 ,4 9 ,5 2
. . . 15,19
Statutes, Rules and Regulations:
42U.S.C. §1983 .............................................................................. 20
California Department o f Corrections, Director’s Rule
1205(d) ....................................................................................3 ,31
California Department of Corrections, Director’s Rule
1205(f) ...................................................................................... 6
California Department o f Corrections, Director’s Rule
1201 3 ,4
California Department of Corrections, Director’s Rule
D2401 ......................................................................................... 5
California Department of Corrections, Director’s Rule
2402(8) ...................................................................................... 3> 4
California Department of Corrections, Mail and Visit
ing Manual §MV-IV-02 ............................................................ 7
California Evidence Code §952 ...................................................... 46
California Penal Code §2600 ........................................... 18, 19, 21
California State Bar Board of Governors, Rules for
Practical Training of Law Students, Rule VII.C ................. 54
Fed. R. Civ. P. Rule 23 ................................................................... 22
Michigan Department o f Corrections, Department
Directive CC-10 (October 17, 1 9 7 2 ) ...................................... 37
Pennsylvania Bureau o f Corrections, Administrative
Directive No. 3 (effective Dec. 15, 1970) ........................... 37
Washington Office of Adult Corrections, Memoran
dum No. 70-5 (Nov. 6, 1970) ............................................ 37
Other Authorities:
American Bar Association, Code of Professional
Responsibility, Canon 3, Ethical Consideration
3-6 51 ,54
( i x )
Bergesen, California Prisoners: Rights Without
Remedies, 25 Stan. L. Rev. 1 (1973) ................ .................. 22
Brickman, Expansion of the Lawyering Process
Through a New Delivery System: The Emergence
and State o f Legal Paraprofessionalism, 71 Col. L.
Rev. 1153 ( 1 9 7 1 ) ...................................................................... 52
California Board o f Corrections, California Cor
rectional System Study: Institutions (July, 1 9 7 1 )..............42
Center for Criminal Justice, Boston University School
of Law, Model Rules and Regulations on
Prisoners’ Rights and Responsibilities ( 1 9 7 3 ) ...................... 43
Jacob and Sharma, Justice After Trial: Prisoners’
Need for Legal Services in the Criminal-
Correctional Process, 18 Kan. L. Rev. 493 (1 9 7 0 ) .............. 53
Larson, Legal Paraprofessionals: Cultivation of a New
Field, 59 A.B.A.J. 631 (1973) .............................................. 55
National Advisory Commission on Criminal Justice
Standards and Goals, Standards 2.15, 2 . 1 7 ........................... 43
Note, Prison Mail Censorship and the First Amend
ment, 81 Yale L. J. 87 ( 1 9 7 1 ) ..............................25, 37, 38, 42
Note, The Right of Expression in Prison, 40 S. Cal. L.
Rev. 407 ( 1 9 6 7 ) ......................................................................... 42
Singer, Censorship of Prisoners’ Mail and the Con
stitution, 56 A.B.A.J. 1051 (1970) .............................. 25 ,42
State Bar of California, Reports (July, 1973) ........................... 46
State Bar of California, Reports (February, 1970) .............. 9, 54
Stern, Prison Mail Censorship: A Non-Constitutional
Analysis, 23 Hastings L. J. 995 (1972) ........................ 25, 42
CONTENTS OF APPENDIX
Pertinent Excerpts from the Standards o f the
National Advisory Commission on Criminal
Justice Standards and Goals ...................................
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1973
No. 72-1465
RAYMOND K. PROCUNIER, DIRECTOR,
CALIFORNIA DEPARTMENT OF
CORRECTIONS, etal.,
Appellants,
v.
ROBERT MARTINEZ and
WAYNE EARLEY, e ta l,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BRIEF FOR APPELLEES
QUESTIONS PRESENTED
1. Whether the district court should have abstained
from deciding one of the two federal constitutional
questions presented and required appellees to institute
proceedings in state court, and whether abstention should
be ordered in the present posture of the case.
2. Whether the district court properly invalidated the
mail censorship regulations involved in this case, and
2
whether the new regulations approved by the court’s final
order fully protect every legitimate interest of appellants.
3. Whether the district court properly invalidated
appellants’ absolute prohibition against use by attorneys
of law student or paraprofessional investigators to inter
view prisoners on their behalf, and whether the new
regulation approved by the court’s final order, authoriz
ing the use of investigators certified by the State Bar,
fully protects every legitimate interest of appellants.
STATEMENT OF THE CASE
A. Further Proceedings in the Court Below
Following the decision from which this appeal was
taken, the district court received proposed regulations
from appellants and further evidence presented by
appellees (A. 98-134). On July 20, 1973, the court gave
final approval to the revised regulations submitted by
appellants. Such regulations are set forth in the Supple
ment to Appendix at pp. 194-203. We submit that the
final regulations, approved over appellees’ objections
(Supp. A. pp. 204-210), fully protect every legitimate
interest of appellants.
B. Statement of Facts
Conspicuously missing from appellants’ Statement is
any mention of the factual record and evidence on which
the decision of the district court was soundly premised.
Accordingly, we here state the pertinent facts.
1. Mail censorship
The California mail censorship rules are expressly
based on the premise that mail is a “privilege”, not a
3
“right”, which may be granted or withheld in the
discretion of prison officials (A. 48, 64).
Prisoners confined in California institutions who desire
to communicate by mail are required to submit letters
to prison officials who censor them to determine whether
they conform to certain rules (A. 19,28—Admission 1).
The rules involved here are the following:
Director’s Rule 2402(8) prohibits prisoners from writ
ing letters that are, inter alia, “defamatory . . . or are
otherwise inappropriate” (A. 19,28; Exhibit C to Appel
lants’ Brief);
Director’s Rule 1201 forbids prisoners from writing
letters in which, inter alia, they “unduly complain” or
“magnify grievances” (Id .); and
Director’s Rule 1205(d) defines “contraband” to include
“any writings . . . expressing inflammatory political, ra
cial, religious, or other views or beliefs when not in the
immediate possession of the originator . . . ” Letters may
constitute contraband writings within this rule (A. 19,
28-Admission 1).
Outgoing letters submitted for mailing by prisoners
and incoming letters addressed to prisoners may be read
by mailroom staff and by other employees of the prison
(A. 19,29-Admission 2; A. 48-50). No criteria or stand
ards, other than those contained in the rules set forth
above, are furnished to the mailroom staff to guide them
in deciding whether a particular letter violates any prison
rule or policy (A. 19-20-Admission 2).
Letters found objectionable by the mailroom staff may
be rejected for a variety of reasons. For example, at
Folsom Prison the checklist used by staff to reject letters
authorizes rejection for, inter alia, “criticizing policy,
rules or officials” and “mentioning inmates by name or
number or relating gossip or incidents” ; and staff may
also reject letters for reasons they deem appropriate
4
(A. 78-79, 50-51, 72-73). The checklist used at San
Quentin also authorizes rejection of letters for a number
of reasons, including “not proper correspondence” and
“prison gossip” (A. 67, 51). The checklist used at the
institution at Vacaville specifies a number of other
reasons for rejecting correspondence, including “offensive
language” (A. 52; exhibit 4 to Procunier dep.; Supp.
A. 190). Appellant Procunier testified that rejecting
letters for these reasons is permissible under the Direc
tor’s Rules set forth above (A. 50-52).
Given the absence of standards for guiding mailroom
staff, and the broad and vague reasons deemed permiss
ible for rejecting letters, it is not surprising that prison
officers frequently reject letters that criticize them or
express opinions they disagree with. Thus, the mailroom
sergeant at Folsom Prison will reject letters as “defa
matory” (within the meaning of Director’s Rule
2402(8)), if they are
“belittling staff or our judicial system or anything
connected with the Department of Corrections”
(A. 75).
Letters will be prohibited for “magnifying grievances”
(within the meaning of Director’s Rule 1201), if they are
“belittling the staff because of their incompetency”
(A. 75). Another official has rejected numerous letters on
the ground that they contain “disrespectful comments,”
or “misrepresenting of facts,” or “derogatory remarks,”
or material that is “discriminatory or derogatory toward
any individuals or races,” or “referring to the different
employees at the institution and making allegations and
stating mistruths and so forth,” or “erroneous informa
tion,” or what the official thinks is “misinformation”
about the prison or “prison gossip” (A. 91,92,81-86, and
5
exhibits 1-8 to Morphis dep.).1 The same criteria govern
censorship of both outgoing and incoming letters (A. 86).
When a prison employee2 decides that a letter con
stitutes improper correspondence, he is authorized to
take the following actions, alone or in combination:
(a) refuse to mail the letter and return it to the
prisoner;
(b) submit a disciplinary report which may lead to
suspension of the prisoner’s mail privileges as
specifically authorized by Director’s Rule
D2401 or to more severe disciplinary punish
ment up to and including confinement in
segregation;3
(c) photocopy the letter and place it or a summary
of its contents in the prisoner’s permanent file
(A. 20,29-Admission 5; A. 59-61 ).4
1 The letters rejected are in evidence and are innocuous by any
standard. They are mostly letters to mothers, fathers or other
relatives complaining of treatment the prisoners have allegedly
received. The official rejected a letter as stating “misinformation”
even though he knew that the statements he objected to were
direct quotations from a published newspaper article, explaining
the prisoner’s reasons for withholding his consent to an “aversion
therapy” program (A. 85 and exhibits 4 and 5 to Morphis dep.).
2Censorship is done by guards assigned to mailroom duty, their
civilian helpers, members of the night watch or the officer in
charge of a lock-up unit (A. 29, 59, 73-74, 81).
3See A. 77; Supp. A. 170; A. 24, 45—Admission 24; Supp. A.
172; A. 24-25, 43-Admission 28. The severity of disciplinary
punishments in California prisons is comprehensively described in
Gutchette v. Procunier, 328 F.Supp. 767 (N.D. Cal. 1971).
4Placed in plaintiff Martinez’s file, for unexplained reasons,
were copies of letters to a relative and to a federal judge (A. 59-60;
exhibits 5 and 6 to Procunier dep.).
6
Letters may be placed in a prisoner’s file even if they do
not violate any rule, if mailroom staff believe that the
letters “reveal an inappropriate attitude toward prison
staff or society or express radical political views”
(A. 21,29-Admission 7). Letters placed in a prisoner’s
file are referred to and consulted by prison classification
committees which determine the prisoner’s housing and
work assignments (A. 21,29—Admission 8). Such letters
are also available to the California Adult Authority which
decides whether and when to grant parole (A. 21,
29—Admission 9; A. 60).s
There is no effective procedure by which a prisoner
may challenge a guard’s censorship decision. Although
appellants say that the prisoner can “appeal” (A. 20,
29-Admission 6), there is no Director’s Rule establishing
any such procedure; prisoners are not informed of the
possibility of appeal; there is no hearing of any kind and
there is no provision for review by anyone other than the
censor.5 6 Regarding incoming letters rejected by staff,
there is not even a provision for notice to the prisoner
that the letter had been received at the prison and
rejected.
Despite the obvious deficiencies and invitations for
abuse contained in their rules, appellants offered no
evidence whatever, not even their opinion, to show that
5 Indeed, Director’s Rule 1205(f) specifically authorizes the
retention of “contraband” writings, which may include letters, for
referral to the Adult Authority (A. 21, 30—Admission 10; Supp. A.
172; A. 24-25, 43—Admission 28).
6 Three different officials described three completely different
and inconsistent procedures to use in seeking review of a mail
decision (A. 58-59, 76, 87), but one candidly admitted that there is
“no established policy” (Miranda dep. p. 24). Appellants keep no
records regarding rejected letters (A. 34-35).
7
there is a legitimate need for such rules, that danger to
prison security might result without them or that the
rules were reasonable or necessary to promote the orderly
functioning of the prisons. The court below expressly
found that the rules were not “reasonable and neces
sary” , were “without any apparent justification” or any
“conceivable justification on the grounds of prison
security” and “would not appear necessary to further any
of these functions [of prisons in America].” 354 F.Supp.
at 1096 (emphasis by the court).
In response to the decision of the district court,
appellants developed and submitted new censorship rules.
The rules proposed by appellants and given final approval
by the district court (Supp. A. 211-212) continue to
regulate the content of prisoner mail, but with consider
ably more specificity. The approved rules also include a
simple procedure for administrative appeals of lower-
level censorship decisions (Supp. A. 197-198). Appellants
have suggested no reasons, either here or in the district
court, why the court-approved regulations do not protect
every legitimate state interest.
2. Law student and paraprofessional
investigators for attorneys
The Mail and Visiting Manual Section MV-IV-02,
promulgated by appellant Procunier, authorizes personal
interviews of prisoners by their attorneys of record or the
designated representative of the attorney of record
(A. 22,30-Admission 17). However, the designated rep
resentative of an attorney must be either a member of the
California Bar or an investigator licensed by the State of
California (Id.). Interviews by law students or parapro
fessional assistants to attorneys are prohibited (Id.).
This rule bars interviews regardless of the qualifica
tions or identity of the student or assistant, the attorney
8
or the prisoner to be interviewed, and regardless of the
type of case, the need to use an investigator or any other
possibly relevant factor. Thus, in this very case, counsel
for appellees, who was requested by the district court to
investigate and to consider undertaking an uncom
pensated appointment in this case, requested permission
to have a supervised law student interview plaintiff
Martinez for the purpose of investigating and preparing
the case (Supp. A. 184-186, 177-182). Permission was
denied by prison officials solely on the ground that no
such interviews are permitted under their rule {Id. ).
Appellants’ rule prohibiting interviews by law students
and other supervised paraprofessionals works a substantial
inconvenience to attorneys representing prisoners or
considering whether to represent prisoners (Supp. A.
184-188). Because of the remoteness of most California
institutions, personal visits by attorneys are necessarily
rare and very inconvenient {Id.). Indeed, such visits are so
time-consuming and inconvenient that, as the court
below found, attorneys are generally reluctant to make
such visits, and this may mean that they decide not to
provide any representation. 354 F.Supp. at 1098. This is
especially true where the prisoners are indigent, as most
are, and cannot pay for the attorney’s expenses or time
in making personal visits. Of course, indigent prisoners
are financially unable not only to retain paid counsel but
also to hire licensed investigators, the only paraprofes
sionals appellants permit to interview prisoners. There is a
growing number of highly qualified and academically
trained legal paraprofessionals who are completely barred
by appellants’ rule from acting as investigators for lawyers
representing prisoners (A. 127-130).
Although appellants prohibit law students assisting
attorneys from interviewing prisoners, they permit a large
number of law students in their institutions on a regular
basis. There are law student programs at most if not all
California prisons (A. 61, 113-115, 116). Law students,
9
with only the minimal supervision of a faculty member,
are permitted to interview prisoners and assist them on
legal matters (Id.; Supp. A. 188; A. 35-39). The prison
officials make no inquiry into the qualifications of law
students in these programs, and make no security check
on them (Id.; A. 62).
In response to the decision of the court below,
appellants developed and submitted a new investigator
rule. Under the new rule proposed by appellants and
approved by the court below, law students and legal
paraprofessionals certified by the State Bar of California
may serve as investigators for attorneys (Supp. A. 198-
200). Appellants’ Brief, filed well after the final order of
the district court, inexplicably asserts that the class of
authorized investigators is much broader (pp. 24-27).
This is just untrue. Indeed, since at present there is no
procedure for State Bar certification of paraprofes
sionals,7 the only addition to the former rule consists of
State Bar certified law students. Even these students are
subject to far more stringent precautions than those
applicable to non-certified law student programs already
authorized by appellants (compare Supp. A. 198-200
with A. 113-114). Appellants have not suggested, either
here or in the district court, any reason why allowing
lawyers to utilize the services of State Bar certified law
students would interfere with any legitimate state inter
est.
7As pointed out in n. 35, infra, the State Bar has strongly
recommended legislation authorizing certification, to utilize the
services that can be provided by qualified paralegal personnel. But
since there is no such procedure presently in effect, appellants’ new
rule will not immediately result in any use of paraprofessional
investigators Under the State Bar’s existing Rules Governing the
Practical Training of Law Students, certified students are permitted
to perform a wide range of functions in the investigation,
preparation and presentation of legal matters under the supervision
of attorneys. See State Bar of California Reports (Feb. 1970).
10
SUMMARY OF ARGUMENT
I.
The district court did not err in declining to abstain
from deciding one of the two federal constitutional
questions presented-the constitutionality of the mail
censorship regulations. Neither of the arguments that
appellants now urge for abstention was presented to the
court below. In these circumstances, appellants cannot
now claim that the district court abused its equitable
discretion by proceeding to decide the constitutional
question presented.
Moreover, abstention is not required simply because
the regulations were invalidated, in part, on the ground of
vagueness. This Court has repeatedly held that abstention
is not proper in such circumstances. Here, there is no
unsettled issue of state law whose resolution could
eliminate the federal question. Nor have appellants
suggested any construction of the regulations that could
conceivably cure their vagueness. And, in any event, the
challenge here is not limited to vagueness. Further, there
is no state statute that is fairly subject to a construction
that would avoid or modify the constitutional question.
Finally, there is no clearly available and adequate state
remedy in California that could have justified the federal
court’s abstaining and thus forcing appellees to repair to
the state courts. California habeas corpus is the only state
prisoner remedy, and it would not be effective to protect
the rights involved here. Requiring appellees to institute
state proceedings would only have caused delay, expense
and frustration, and the federal constitutional question
would not have been eliminated.
Even if abstention might have been appropriate as an
initial matter in the district court-assuming the proper
11
grounds had been timely raised by appellants-abstention
should not be ordered in the present posture of the case.
Everything the abstention doctrine is designed to post
pone—premature federal proceedings involving state
officials-has already occurred here without specific
objection by appellants. And since appellants have not
contended that the new regulations submitted by them
and given final approval by the court below fail to
protect any of their legitimate interests, it would make
no sense to order the district court to abstain now.
II.
The district court properly invalidated appellants’
former mail censorship regulations. There is no conten
tion in this case that prison officials may not inspect and
read prisoner mail. The issue concerning the constitu
tionality of regulations under which guards censor and
punish prisoners for the content of their letters-the
words they use—was properly resolved by the court
below. The only provisions invalidated prohibited pris
oners from writing letters in which they “unduly com
plain,” or “magnify grievances” or express certain “views
or beliefs” or which are deemed “defamatory” or
“otherwise inappropriate.” These provisions are not
needed to serve any legitimate penal interest. Recognizing
that prisoners’ First Amendment rights may be curtailed
because of their restrictive environment, and keeping in
mind legitimate penal interests, the rules here are
nevertheless invalid because (1) they are overbroad in that
they prohibit lawful and protected expression; (2) they
are unduly vague, with the result that standardless and
discriminatory enforcement is encouraged; (3) they fail
to give fair notice of conduct that may be severely
punished; and (4) thay lack procedural safeguards against
12
suppression of protected speech through error or arbitrar
iness. A principal use of the rules has been to suppress
criticism of prison guards and their policies, regardless of
whether such criticism is valid.
The record is barren of any justification for the rules in
question, and the district court properly found, on the
evidence presented, that no legitimate penal considera
tion supported them. Furthermore, responsible correc
tional authorities throughout the nation now reject mail
censorship of the kind involved here as unsound correc
tional practice. The authorities find such censorship
unnecessary and counterproductive. The only real contro
versy among the authorities today is whether prisoner
mail should be read at all, not what contents should be
censored or punished, and that is not an issue that the
Court must now resolve.
Finally, showing more than ample deference to appel
lants, the district court gave final approval to new
regulations developed and submitted by appellants. These
regulations fully protect every legitimate state interest.
III.
The district court properly invalidated appellants’
former absolute prohibition against use by attorneys of
law student or paralegal investigators to interview pri
soners. Appellants voluntarily began permitting State Bar
certified law students to perform this function. The only
requirement added by the district court was to include
State Bar certified paralegal assistants; but since there is
presently no such paralegal certification, appellants have
not yet been required to do anything they are not already
doing voluntarily.
The decisions of this Court have firmly established the
principle that prisoners have a due process right of
13
effective access to the courts for the purpose of setting
aside invalid convictions or remedying invasions of their
constitutional rights while incarcerated. But appellants’
former rule barred all law student and paralegal assistants
to attorneys regardless of their qualifications and regard
less of the need to use them in order to provide legal
assistance to indigent prisoners. This results in denial of
effective access to the courts for such prisoners. The
California Bar and the American Bar Association have
strongly recommended the use of law students and
paralegals to assist in providing legal services to those
otherwise unable to obtain them. If use of such persons is
merely desirable as a general matter, it is absolutely
essential if indigent prison inmates are to receive vital
assistance in obtaining access to the judicial process.
Appellants here were unable to show any counter
vailing state interest to justify their rule impeding
indigent prisoners’ due process right of effective access to
the judicial process. Yet the burden of justifying the
exclusion of trained and supervised assistants to lawyers
should be greater than the burden of justifying restric
tions on “jailhouse lawyers,” which this Court struck
down in Johnson v. Avery, 393 U.S. 483 (1969). Here,
the district court gave more than adequate deference to
any legitimate interest of appellants. The new regulation
developed and submitted by appellants, which was given
final approval by the court below, fully protects every
legitimate state interest.
14
ARGUMENT
I. THE DISTRICT COURT DID NOT ERR IN DECLIN
ING TO ABSTAIN FROM DECIDING ONE OF THE
TWO FEDERAL CONSTITUTIONAL QUESTIONS
PRESENTED, AND ABSTENTION SHOULD NOT BE
ORDERED NOW.
Appellants contend that the district court should have
abstained from deciding one of the two federal constitu
tional questions—the constitutionality of the mail censor
ship regulations (Appellants’ Brief, p. 5). Appellants do
not suggest that the court should have abstained from
deciding the other half of the case, dealing with denial of
access to investigators for attorneys. Appellants argue
that the court should have required appellees to repair to
the state courts to institute proceedings on the first issue
because (1) the mail regulations were challenged, in part,
on the ground of vagueness, and (2) a construction of
California Penal Code §2600(4) might have avoided or
modified the federal constitutional question. Neither of
these contentions was presented to the court below. We
submit that the court below was not required initially to
abstain and that, in any event, abstention should not be
ordered now.
A. The District Court Was Not Required
Initially To Abstain.
As noted above, neither of the specific arguments now
urged for abstention was made in the district court.
Appellants’ failure to raise these points below ought to
bar them from belatedly claiming that the court should
have abstained. Cf. Brown v. Chote, 411 U.S. 452 (1973);
Tacon v. Arizona, 410 U.S. 351 (1973); Jones v. United
States, 357 U.S. 493, 499-500 (1958), indicating that
15
such tactics are not favored by this Court. Since
abstention “involves a discretionary exercise of a [fed
eral] court’s equity powers,” Baggett v. Bullitt, 377 U.S.
360, 375 (1964), and since appellants did not ask the
court below to exercise its discretion on the grounds now
urged,8 they cannot now claim that the court abused its
equitable discretion by proceeding to decide the federal
constitutional question presented.
Even if appellants did not waive their abstention
arguments by failing to present them seasonably below,
the new arguments are without merit and inconsistent
with recent precedents in this Court.
1. Abstention is not required simply because
regulations are challenged and invalidated, in
part, on the ground o f vagueness.
Appellants leap from the fact that the mail regulations
were found to be defective because they are, inter alia,
unconstitutionally vague, to the conclusion that the
district court was required to abstain until the regulations
had been authoritatively construed by a state court. This
simplistic assertion directly conflicts with this Court’s
decisions in Baggett v. Bullitt, 377 U.S. 360 (1964);
Keyishian v. Board o f Regents, 385 U.S. 589, 601, n.9
(1967); Dombrowski v. Pfister, 380 U.S. 479, 489-490
(1965); and Zwickler v. Koota, 389 U.S. 241, 252
8 In the district court appellants did make one very short and
half-hearted statement that the court should abstain. But the
statement was no more than a generality in the course of argument
on the merits that plaintiffs had not stated a claim. (See
defendants’ Memorandum of Points and Authorities in Support of
Motion to Dismiss, p. 10 (dated Sept. 8, 1972).) Neither of the
specific grounds for abstention urged here was ever presented to
the court.
16
(1967). In all these cases the Court held that abstention
was inappropriate even though the state provisions were
challenged and struck down as impermissibly vague or
overbroad. As Mr. Justice White carefully explained in
Baggett v. Bullitt, supra, a case involving provisions held
“unduly vague, uncertain and broad” (377 U.S. at 366),
the “abstention doctrine is not an automatic rule applied
whenever a federal court is faced with a doubtful issue of
state law . . .” Id. at 375. Abstention may be appropriate
when “the unsettled issue of state law principally
concern [s] the applicability of the challenged statute to a
certain person or a defined course o f conduct, whose
resolution in a particular manner would eliminate the
constitutional issue and terminate the litigation” (Id. at
376- 377) (emphasis added). But when the uncertain issue
is not a “choice between one or several meanings of a
state statute” but among an “indefinite” number of
interpretations, and the question is not coverage of
“certain definable activities” but rather the complaint is
that those affected “cannot understand” the provisions,
“cannot define the range of activities in which they might
engage in the future, and do not want to forswear doing
all that is literally or arguably within the purview of the
.vague terms” , abstention should not be ordered. Id. at
377- 78. Here, as in Baggett, “in light of the vagueness
challenge,” it is highly unlikely that any State interpreta
tion would avoid or significantly alter the constitutional
issue and, with the delay inherent in repairing to the state
courts for perhaps repeated interpretations of the vague
regulations, abstention would be “a result quite costly
where the vagueness. . . may inhibit the exercise of First
Amendment freedoms.” Id. at 379.
In the case at bar there is no unsettled issue' con
cerning the applicability of the regulations to appel
lees or to their communications by mail, “whose resolu
17
tion in a particular manner would eliminate the constitu
tional issue . . Here, as in Baggett, the choice is among
an “indefinite” number of interpretations and the
challenge is that the persons affected “cannot under
stand” what is prohibited by the regulations and “cannot
define the range” of expression which may be “literally
or arguably within the purview of the vague terms.” Thus,
for example, the prisoners cannot know what will be
prohibited as “unduly complaining” or “magnifying
grievances,” or “otherwise inappropriate.”
Appellants have suggested no possible construction of
the regulations that would cure their vagueness. Indeed,
appellant Procunier’s testimony (A. 50-52), approving
completely open-ended interpretations of the rules, ac
tually compounds their vagueness. Since he is the State
official charged with both promulgating and enforcing the
rules and “entrusted with the definitive interpretation of
the language of the Rule,” there is no reason not to
accept his constuction of the meaning. See Law Students
Civil Rights Research Council v. Wadmond, 401 U.S. 154,
161 (1971). As the Court said in Broadrick v. Oklahoma,
___ U .S.____, 41 U.S.L.W. 5111, 5116 (1973), “ Surely
a court cannot be expected to ignore these authoritative
pronouncements in determining the breadth” of the
rules. There is no doubt that the district court in this case
correctly interpreted the rules and their intent as confer
ring completely unchecked censorship power.
Furthermore, the challenge here is not limited to
vagueness. The court below also held that the regulations
were overbroad because they actually outlawed protected
speech (e.g., criticism of correctional policies), and that
they lacked essential procedural safeguards against denial
of valid expression through error or arbitrariness. 354
F.Supp. at 1097. Appellants have suggested no construc
tion of the regulations that could conceivably have
eliminated these defects.
18
2. Penal Code §2600(4) is not fairly subject to a
construction that would avoid or modify the
constitutional question.
Appellants’ contention that some construction of
California Penal Code §2600(4) by a state court might
have avoided or modified the federal constitutional
question is frivolous. Appellants have not suggested any
such construction. The statute cannot conceivably be
interpreted to govern the issues in this case, and no one,
least of all the California Attorney General, has ever
before had the temerity to say that it might provide a
remedy for prisoners in a case like this one. By its own
terms, §2600(4) deals only with the receipt by prisoners
of “newspapers, periodicals, and books” , and a provision
authorizes officials to exclude “publications or writings
and mail containing information concerning where, how,
or from whom such matter may be obtained
(emphasis added). In short, the only mail covered by the
statute concerns solicitations for obscene publications or
writings; no provision purports to regulate general corres
pondence.9
9 In contrast, subsection (2) o f §2600 expressly provides for
confidential attorney mail. While this issue was raised as a
constitutional matter in the prisoners’ complaint, we recognized
that the statute could be construed to govern this issue and
accordingly advised the district court that it should abstain until
the California Supreme Court decided a case then pending before it
(Memorandum filed July 6, 1972, p. 14). In fact, the California
court did decide that this provision of §2600 means what it says.
See In re Jordan, 1 Cal.3d 930, 500 P.2d 873 (1972).
As to general correspondence, the only remotely relevant
California state court decision assumes that prison officials have
unrestricted censorship powers. See Yarish v. Nelson, 27 Cal.
App.3d 893, 898, 104 Cal. Rptr. 205 (1972).
19
That §2600(4) was never intended to deal with general
mail censorship is made clear by recent legislative history.
In 1972, a bill was introduced specifically to amend
§2600 to grant limited freedom from mail censorship
(Senate Bill 1419). The bill passed the Legislature but
was vetoed by Governor Reagan. The bill would have
added an entirely new subsection to §2600, granting
prisoners a right to correspond essentially without limita
tion and subject to inspection only to search for
contraband or to prevent commission of a crime.1 0
Until now, no one has ever suggested that § 2600(4)
had anything whatever to do with general mail censor
ship, and it is absurd to assert that the statute could
dispose of the issues in this case. It is well settled that
because of the duplication of effort and expense and
attendant delay, abstention is appropriate only in nar
rowly limited special circumstances where a state statute
might reasonably be construed to avoid or modify the
federal constitutional question. See Lindsey v. Normet,
405 U.S. 56, 62, n.5 (1972); Lake Carriers’ Association v.
MacMullan, 406 U.S. 498, 510-11 (1972). Such a
construction must be a reasonably possible one, not a
strained and fanciful one. “ [I] f a state statute is not
fairly subject to an interpretation which will avoid or
modify the federal constitutional question, it is the duty
of a federal court to decide the federal question when
presented to it.” Zwickler v. Koota, 389 U.S. 241, 251
(1967), quoting from United States v. Livingston, 179
F.Supp. 9, 12-13, affd , 364 U.S. 281; see also Harman v.
Forssenius, 380 U.S. 528, 534-535 (1965); compare
Reetz v. Bozanich, 397 U.S. 82, 86-87 (1970) (case could 10
10 The bill was attached as an Appendix to our Motion to
Affirm or Dismiss previously filed in this Court.
20
clearly be decided on applicable and specific state
constitutional provisions).
It makes no difference that this case involves a state
correctional agency as opposed to some other state
agency. The courts have uniformly found no basis for
abstaining solely because the defendants were state prison
officials.11 Appellants’ reliance on Preiser v. Rodriguez,
411 U.S. 475, 93 S.Ct. 1827 (1973), is misplaced. That
case had nothing to do with abstention. The Court in
Rodriguez was faced with reconciling two federal sta
tutes, the federal habeas statute, which required exhaus
tion of state remedies, and 42 U.S.C. §1983, which did
not. The Court held that if a prisoner is challenging “ the
very fact or duration of confinement” and is seeking
“immediate or more speedy release,” habeas corpus is the
exclusive remedy. The Court distinguished prior prisoner
cases that did not require resort to state courts, Wilword-
ing v. Swenson, 404 U.S. 249 (1972), Haines v. Kerner,
404 U.S. 519 (1972), Houghton v. Shafer, 392 U.S. 639
11 See, e.g., Shelton v. Union County Board o f Commissioners,
___ F .2 d ___ , No. 71-151 (7th Cir. Aug. 7, 1973); Jones v.
Metzger, 456 F.2d 854 (6th Cir. 1972); Lewis v. Kugler, 446 F.2d
1343 (3d Cir. 1971); Wright v. McMann, 387 F.2d 519, 524-525
(2d Cir. 1967); Rivers v. Royster, 360 F.2d 592 (4th Cir. 1966);
Pierce v. LaVallee, 293 F.2d 233, 235-236 (2d Cir. 1961) (cited
with approval in Cooper v. Pate, 378 U.S. 546 (1964); Clutchette
v. Procunier, 328 F.Supp. 767 (N.D. Cal. 1971); Carothers v.
Follette, 314 F.Supp. 1014 (S.D. N.Y. 1970). Judge Kaufman
remarked in Wright v. McMann, supra, that “cases involving vital
questions of civil rights are the least likely candidates for
abstention.” 387 F.2d at 525. And Judge Mansfield in Carothers v.
Follette, supra, pointed out that since, as here, the only basis for
deciding the case was on federal constitutional grounds, “To
abstain, therefore, would merely be to postpone the inevitable.”
314 F.Supp. at 1019.
21
(1968), and Cooper v. Pate, 378 U.S. 546 (1964), on the
ground that (as in the present case) “none of the state
prisoners in those cases was challenging the fact or
duration of his physical confinement itself, and none was
seeking immediate or more speedy release from that
confinement—the heart of habeas corpus.” 93 S.Ct. at
1840. The Court also recognized that there are many civil
rights cases in which the states have strong interests, yet
initial resort to state courts is not required because no
specific federal statute, like the habeas statute, requires
going first to the state courts. 93 S.Ct. at 1838, n.10. See
McNeese v. Board o f Education, 373 U.S. 668 (1963)
(school segregation);12 Damico v. California, 389 U.S.
416 (1967) (welfare problems); Monroe v. Pape, 365 U.S.
167 (1961) (police practices).
3. There is no clearly available
comparable state remedy
Finally, appellants recognize that “the availability of a
readily accessible and meaningful state remedy is a
prerequisite to the application of the doctrine of absten
tion” (Appellants’ Brief, p. 7, n.2). They assert that
California provides such a remedy but, in fact, the
availability of an adequate remedy is not at all clear. The
state has a “civil death” statute (Penal Code § 2600) that
apparently disables prisoners from maintaining actions,
12In McNeese, 373 U.S. at 674, the Court quoted with approval
from Stapleton v. Mitchell, 60 F.Supp. 51, 55 (D. Kan. 1945):
“We yet like to believe that wherever the Federal courts sit,
human rights under the Federal Constitution are always a
proper subject for adjudication, and that we have not the
right to decline the exercise of that jurisdiction simply
because the rights asserted may be adjudicated in some other
forum.”
22
like the present one, for injunctive relief. The only
recognized remedy for California prisoners is habeas
corpus. While habeas can be used to strike down plainly
invalid regulations, see In re Jordan, 7 Cal.3d 930, 500
P.2d 873 (1972), appellants have cited no authority
indicating that the kind of injunctive relief granted by the
district court here—requiring the submission of new
regulations that protect the interests of all parties-would
be available in California habeas. Further, there are real
doubts as to the practical efficacity of the habeas remedy
in California. See generally Bergesen, California Prisoners:
Rights Without Remedies, 25 Stan. L. Rev. 1 (1973).13 In
short, remitting appellees to the state courts would have
caused delay, expense and the probable frustration of
finding that no comparable remedy was available-all
with no likelihood that the vague regulations could be
authoritatively construed to eliminate the constitutional
questions.
B. Abstention Should Not Be Ordered Now
Even if abstention would have been appropriate as an
initial matter in the district court, assuming the proper
13 As one example, there is no clear or adequate provision for
pretrial discovery in California habeas, and in fact discovery of the
most relevant matters has been denied by the California courts. See
Bergesen, supra, at 21-22, n. 159; 27-28. But in the present case
appellees could not have proved their case without the discovery
authorized by the Federal Rules o f Civil Procedure. As another
example, there is no provision for maintaining a class action in
California habeas, but this case was properly brought to obtain
class relief under Rule 23 of the Federal Rules. Finally, there has
apparently never been a reported case in which a prisoner has
prevailed when the facts were in dispute, for the California courts
use procedures that virtually guarantee finding the facts against the
prisoner. See generally Bergesen, supra.
23
grounds had been timely raised by appellants, it would be
pointless to order the court below to “stay its hand”
now. As all this Court’s abstention cases indicate, the
purpose of the doctrine is to avoid the needless confron
tation of the state and federal systems. The doctrine is
designed to avoid premature federal proceedings-with
pleadings, responses by state officials, discovery, hearings
on the merits and federal court orders running against
state officials. But all this has already happened in the
present case. Everything that abstention is designed to
postpone has already occurred here-and it occurred
without appellants’ having urged the grounds for absten
tion they do in this Court. Moreover, appellants have not
complained, either in the district court or in this Court,
that any of the new regulations submitted by appellants
and approved by the court below do not protect any of
their legitimate interests. In these circumstances, when it
is impossible to undo everything that has been done
without appellants’ objection, it would make no sense to
order abstention now.
n.
THE DISTRICT COURT PROPERLY INVALIDATED
APPELLANTS’ FORMER MAIL CENSORSHIP
REGULATIONS, AND THE NEW REGULATIONS
APPROVED BY THE COURT BELOW FULLY
PROTECT EVERY LEGITIMATE INTEREST OF
APPELLANTS.
There is no contention in this case that prison officials
may not inspect and read prisoner mail; that is not an
issue the Court must here resolve. Nor is there any
contention that officials may not censor the content of
mail to protect prison security. The question is whether
there are any limits to their censorship power. The issue
24
concerns the constitutionality of regulations under which
prison guards censor and punish prisoners for the content
of their communications—the words they use. As will be
seen, infra, however, the only real controversy in correc
tions today is whether officials should inspect and read
mail at all, not what contents should be regulated.
In order to understand precisely what is at issue on
this appeal, it is necessary to compare the regulations
invalidated by the court below with the regulations
given final approval by the court on July 20, 1973
(Supp. A. 194-203). The difference between the
former rules and the approved rules constitutes what the
court below decided. Comparison of the rules shows that
the net effect of the proceedings below was to invalidate
the former rules prohibiting prisoners from writing letters
in which they “unduly complain,” or “magnify griev
ances” or express “inflammatory political, racial, reli
gious or other views or beliefs,” or which are “defama
tory” or “are otherwise inappropriate.” Except for these
provisions, the substance of the former rules survived
scrutiny and is contained in the rules given final approval
by the court below. Therefore, the question for review
here is whether the court below properly invalidated
these provisions.14
14 Appellants’ Brief (pp. 21-22) makes a number of misleading
references to regulations that are not at issue here. Thus, the rules
prohibiting letters concerning “criminal activity,” or “obscene
letters,” were neither challenged by appellees nor struck down by
the court below. The same is true of the ban on “foreign matter”
and “display or circulation” of “contraband” when “used to
subvert prison discipline.” Further, the prohibitions of “escape
plans” or plans for producing “explosives,” or “behavior which
might lead to violence” were neither attacked by appellees nor
invalidated by the district court.
25
The premise of these provisions was that communica
tion by mail is a “privilege,” not a “right,” which may be
granted or withheld in the discretion of prison officials
(A. 48,64). We believe this is a faulty premise, for it is
clear that the right to communicate by mail is not only
guaranteed by the First Amendment, see Blount v. Rizzi,
400 U.S. 410, 416 (1971); Lamont v. Postmaster
General, 381 U.S. 301, 305 (1965),15 but is not lost
simply by virtue of imprisonment.16 In any event, the
“right-privilege” distinction has been definitively rejected
as an analytic tool in deciding questions of important
freedoms.17
15 The unanimous decisions in Blount and Lamont both quoted
with approval Mr. Justice Holmes’ view that “the use of the mails is
almost as much a part o f free speech as the right to use our
tongues.” Milwaukee Social Democratic Publishing Co. v. Burleson,
255 U.S. 407, 437 (1921). See also the opinion of Mr. Justice
Brandeis, rejecting the view that use o f the mails is merely a
privilege and not a right. 255 U.S. at 427.
16 See, e.g., Gray v. Creamer, 465 F.2d 179, 186 (3d Cir. 1972);
Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Adams v.
Carlson, 352 F.Supp. 882, 896 (E.D. 111. 1973); Palmigiano v.
Travisono, 314 F.Supp. 776 (D. R.I. 1970); Carothers v. Follette,
314 F.Supp. 1014, 1023 (S.D. N.Y. 1970); State ex rel. Thomasv.
State of Wisconsin, 55 Wis.2d 343, 198 N.W.2d 675 (1972); cf
Neal v. State o f Georgia, 469 F.2d 446, 450 (5th Cir. 1972); see
generally Note, Prison Mail Censorship and the First Amendment,
81 Yale L. J. 87 (1971); Stern, Prison Mail Censorship: A
Non-Constitutional Analysis, 23 Hastings L. J. 995 (1972); Singer,
Censorship o f Prisoners’ Mail and the Constitution, 56 A.B.A. J.
1051 (1970). Indeed, even appellants profess to recognize the
value, from a corrections viewpoint, of relatively free prisoner mail
(A. 65—Policy Regarding Mail; Appellants’ Brief, p. 23, n. 7).
17 See, e.g., Morrissey v. Brewer, 408 U.S. 471,481-482 (1972);
Graham v. Richardson, 403 U.S. 365, 374 (1971); Goldberg v.
Kelly, 397 U.S. 254, 262 (1970); Landman v. Royster, 333
F.Supp. 621, 644-645 (E.D. Va. 1971); Clutchette v. Procunier,
328 F.Supp. 767, 779 (N.D. Cal. 1971); Gilmore v. Lynch, 319
F.Supp. 105, 108 (N.D. Cal. 1970), affd sub nom. Younger v.
Gilmore, 404 U.S. 15 (1971).
26
Appellants concede, as they must, that “a prisoner
does not shed all his First Amendment rights at the
prison gates” (Appellants’ Brief, p. 15).18 But instead of
explaining the extent to which prisoners’ First Amend
ment rights must be curtailed because of legitimate penal
interests, appellants simply cite the famous dictum from
Price v. Johnston, 334 U.S. 266, 285 (1948): “ Lawful
incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal
system.” 19 This begs the question, which is what with
drawals or limitations are “necessary” because of what
penal “considerations.” Similarly, the “ test” proposed by
appellants-whether the regulation “lacks support in any
rational and constitutionally acceptable concept of a
18 See Cruz v. Beto, 405 U.S. 319 (1972); Cooper v. Pate, 378
U.S. 546 (1964); O’Malley v. Brierley, A ll F.2d 785 (3d Cir.
1973); Remmers v. Brewer, 475 F.2d 52, 54 (8th Cir. 1973); Gray
v. Creamer, 465 F.2d 179, 186 (3d Cir. 1972); Nolan v.
Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Barnett v. Rodgers, 410
F.2d 995, 1000 (D.C. Cir. 1969); Jackson v. Godwin, 400 F.2d
529, 541 (5th Cir. 1968); Rowland v. Sigler, 327 F.Supp. 821 (D.
Neb. 1971), aff’d 452 F.2d 1005 (8th Cir. 1971); Fortune Society
v. McGinnis, 319 F.Supp. 901 (S.D. N.Y. 1970); Palmigiano v.
Travisono, 317 F.Supp. 776 (D. R.I. 1970); Carothers v. Follette,
314 F.Supp. 1014, 1023 (S.D. N.Y. 1970); Hillery v. Procunier,
___ F.Supp.___ , No. C-71 2150 SW (N.D. Cal. Aug. 16, 1973)
(3-judge court); State ex rel. Thomas v. State of Wisconsin, 55
Wis.2d 343, 198 N.W.2d 675 (1972).
19Price had absolutely nothing to do with the rights of
prisoners vis-a-vis prison officials. The case actually held that a
federal court o f appeals has power to order a prisoner brought
before the court to argue his own appeal. 334 U.S. at 278, 284.
The decision sheds no light on the appropriate standards o f judicial
review of prison regulations.
27
prison system”—also begs the question of what is
“constitutionally acceptable.”
The district court assumed that prisoners’ First
Amendment rights exist only to the extent that their
exercise is consistent with legitimate penal interests. But
the record here shows that the censorship rules were not
in fact needed to serve any legitimate interest. The court
below found that they are not “reasonable and neces
sary” to serve any such interest, that they are “without
any apparent justification” or any “conceivable justifica
tion on the grounds of prison security” and that they
“would not appear necessary to further any of these
functions [of prisons in America].” 354 F.Supp. at 1096
(emphasis by the court).
We recognize that First Amendment rights may have
legitimate limits in the prison context. As Mr. Justice
Powell has explained, “First Amendment rights must
always be applied ‘in light of the special characteristics of
the . . . environment’ in the particular case.” Healy v.
James, 408 U.S. 169, 180 (1972); see also Tinker v. Des
Moines School District, 393 U.S. 503, 506 (1969).
Keeping the prison environment in mind, and giving due
deference to legitimate penal interests, we submit that
the mail censorship provisions involved here are invalid
under familiar principles: (1) they are overbroad in that
they prohibit lawful and protected expression; (2) they
are unduly vague, with the result that standardless and
selective enforcement against unpopular causes and pris
oners is encouraged; (3) they fail to give fair notice of
punishable conduct; and (4) they lack essential procedur
al safeguards against denial of First Amendment rights
through error or arbitrariness.
28
1. Overbreadth and Prohibition
o f Lawful Expression
The rules invalidated by the district court are not
“narrowly drawn” regulations representing “a considered
legislative judgment” that particular expression “has to
give way to other compelling needs of society.” See
Broadrick v. Oklahoma, ____U.S. ____, 41 U.S.L.W.
51 11, 51 14 (1973). The rules do not provide the
necessary “sensitive tools” to carry out the “separation
of legitimate from illegitimate speech.” See Blount v.
Rizzi, 400 U.S. 410, 417 (1971); Speiser v. Randall, 357
U.S. 513, 525 (1958). They disregard the established
principle that “government may regulate in the [First
Amendment] area only with narrow specificity” and that
“precision of regulation must be the touchstone in an
area so closely touching our most precious freedoms.”
See NAACP v. Button, 371 U.S. 415, 433, 438 (1963);
Keyishian v. Board o f Regents, 385 U.S. 589, 603-604
(1967); United States v. Robel, 389 U.S. 259, 265
(1967); see generally Grayned v. City o f Rockford, 408
U.S. 104 (1972) (summary of overbreadth principles and
precedents of this Court). They are “overbroad” in that
they “sweep unnecessarily broadly and thereby invade
the area of protected freedoms.” See NAACP v. Alabama
ex rel. Flowers, 377 U.S. 288, 307 (1964) (Harlan, J.); see
also Brandenburg v. Ohio, 395 U.S. 444, 448 (1969);
Thornhill v. Alabama, 310 U.S. 88, 97 (1940); Grayned
v. City o f Rockford, supra, 408 U.S. at 114 (“in its reach
it prohibits constitutionally protected conduct” ); United
States v. Robel, supra, 389 U.S. at 266.
In short, the rules do not narrowly proscribe only
expression that falls outside the ambit of the First
Amendment. They prohibit a broad range of expression
that is clearly entitled to First Amendment protection.
29
We are not dealing here with obscenity or libel or
“ fighting words.” We are dealing with thoughts expressed
in prisoner mail to relatives or friends-mainly outgoing
letters, not matters circulated within the walls—that the
prison censor disapproves as “unduly complaining,”
“magnifying grievances” or “otherwise inappropriate.”
As one example of the overbroad sweep of these
provisions, a principal use of the rules has been to
suppress criticism of prison guards and their policies
(regardless of whether such criticism is valid). At Folsom
Prison officials bluntly announce that letters “criticizing
policy, rules or officials” violate the rules, and appellant
Procunier testified that rejecting letters for this reason is
authorized by the rules (A. 50-52). Letters are rejected
for “belittling” staff or “the judicial system” or, indeed,
“anything connected with the Department of Correc
tions” (A. 75). Further, letters “magnify grievances”
within the meaning of the rule if they are “belittling the
staff because of their incompetency” (Id.). Letters may
also be rejected for containing “misinformation” or
“prison gossip,” for being “derogatory to any individ
u a ls” or “ militant” or merely “inappropriate”
(A. 91,92,81-86 and exhibits 1-8 to Morphis dep.). What
the censoring guards consider “prison gossip” or “in
appropriate” could well be a prisoner’s complaint of
mistreatment or his fears thereof. As the court below
found, the rules can be and are used to suppress prisoner
grievances, and this obviously conflicts with the First
Amendment rights of expression and to petition for
redress of grievances.
This Court has frequently recognized that the First
Amendment protects criticism of public officials, even
when untrue. See, e.g., New York Times v. Sullivan, 316
U.S. 254 (1964); Pickering v. Board o f Education, 391
U.S. 353, 570 (1968); Near v. Minnesota, 283 U.S. 697,
30
710 (1931 ).20 Here, the rules prohibit such criticism
regardless of its truth. This has unfortunately been
common in prison mail censorship, but now the lower
courts have resoundingly condemned the suppression of
prisoners’ complaints about official conduct or policies.
See Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971);
Sostre v. McGinnis, 442 F.2d 178, 201 (2d Cir. 1971);
Worley v. Bounds, 355 F.Supp. 115 (W.D. N.C. 1973);
Adams v. Carlson, 352 F.Supp. 882, 896 (E.D. 111. 1973);
Fortune Society v. McGinnis, 319 F.Supp. 901 (S.D.
N.Y. 1970);21 Palmigiano v. Travisono, 317 F.Supp. 776,
788 (D. R.I. 1970);22 Carothers v. Follette, 314 F.Supp.
1014 (S.D. N.Y. 1970); State ex rel. Thomas v. State o f
Wisconsin, 55 Wis.2d 343, 198 N.W.2d 675 (1972)
(holding that “letters critical of prison administration
20 In Near the Court struck down a statute authorizing
injunctions against publishing a “defamatory” newspaper, pointing
out that the “previous restraint” was imposed even without proof
of the falsity o f charges “against public officers of corruption,
malfeasance in office, or serious neglect of duty.” 283 U.S. at 710.
The rules in the instant case similarly prohibit the writing of
“defamatory” letters criticizing public officials, regardless of the
truth of the criticism.
21 In Fortune Society the court said:
“Censorship is utterly foreign to our way o f life; it smacks of
dictatorship. Correctional and prison authorities, no less than
the courts, are not above criticism, and certainly they possess
no power of censorship simply because they have the power
of prison discipline.” 319 F.Supp. at 905.
22 In Palmigiano the court enjoined even reading prisoner mail
because the censorship power was wrongfully being used “to
suppress any criticism of the institution or institutional officials.”
While Palmigiano involved prisoners awaiting trial, the officials
subsequently entered into a consent decree enjoining all censorship
of mail for all prisoners. See Morris v. Affleck, No. 4192 (D. R.I.
April 20, 1972).
31
cannot be forbidden because they cause embarrassment
or inconvenience to prison authorities” ). Thus, the rules
prohibiting letters that “unduly complain,” “magnify
grievances” or that are “defamatory,” to the extent they
are not unconstitutionally vague (see section 2, infra), are
overbroad and ban lawful expression.
Another example of overbreadth is the prohibition of
“inflammatory political, racial, religious, or other be
liefs.”23 It must be remembered that no limiting stand
ards are given to mailroom staff to guide them in deciding
whether a letter violates any particular rule. This rule
thus bans any “view or belief’ that the censor considers,
in his unguided discretion, to be “inflammatory.” It must
also be remembered that we are not dealing with public
demonstrations or speeches or communications to be
circulated within the prison walls; we are dealing with
letters from prisoners to relatives and friends outside the
prison. We are unable to understand how such letters
could reasonably be called “inflammatory” -except to
the censoring guard who finds the views or beliefs
distasteful. Even expression that might legitimately be
suppressed inside the walls cannot be censored from
23 This is interpreted to ban “derogatory remarks,” “offensive
language,” material that is “discriminatory or derogatory toward
any individuals or races,” etc. Letters may also be placed in a
prisoner’s file if they “reveal an inappropriate attitude toward
prison staff or society or express radical political views” (A. 21,
2 9 - Admission 7).
The prohibition o f “inflammatory . . . views or beliefs” is
contained in the general definition of “contraband” and covers
letters “when not in the immediate possession o f the originator”
(see Rule 1205(d) in Exhibit C to Appellants’ Brief, and A. 19,
28-Admission 1). This apparently covers not only all incoming
mail but also all outgoing prisoners’ letters when put in the mail
box.
32
outgoing letters because it obviously would not cause
disruption within the prison. By definition, outgoing
expression of “views or beliefs” is not “directed to
inciting or producing imminent lawless action” and is not
“likely to produce such action.” Cf. Brandenburg v.
Ohio, 395 U.S. 444, 447 (1969). Any regulation that fails
to distinguish between abstract advocacy of unpopular
ideas and incitement to action is invalid as overbroad
because “it sweeps within its condemnation speech which
our Constitution has immunized from governmental
control.” Id. at 448. Lower courts have applied essen
tially the same principle in prisoner mail cases and have
held that officials cannot impose punishment for the
contents of letters unless they can show a real danger to
prison security.24 In Sostre v. McGinnis, 442 F.2d 178,
202 (2d Cir. 1971), cert, denied sub nom. Sostre v.
Oswald, 404 U.S. 1049 (1971), the court held that a
prisoner could not be punished because of his own
writings even though the warden (not just a mailroom
guard) considered the views “inflammatory,” “racist”
and insulting. The Sostre court, en banc, said that
sanctioning punishment “would permit prison authorities
to manipulate and crush thoughts under the guise of
regulation. The intimidating threat of future similar
punishment would chill a wide range of prisoner expres
sion, not limited to that expression which [the warden]
24 See Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex.
1972), en banc hearing ordered, 476 F.2d 1285 (5th Cir. 1973);
Palmigiano v. Travisono, 317 F.Supp. 776 (D. R.I. 1970);
Carothers v. Follette, 314 F.Supp. 1014, 1025 (S.D. N.Y. 1970);
cf. Goodwin v. Oswald, 462 F.2d 1237, 1244 (2d Cir. 1972);
Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Long v. Parker,
390 F.2d 816, 822 (3d Cir. 1968); Brenneman v. Madigan, 343
F.Supp. 128, 141-142 (N.D. Cal. 1972).
33
might in fact deem dangerous enough to discipline.” 442
F.2d at 202.
In short, the rules involved here, conferring an un
checked censorship power,2S prohibit a wide range of
expression that the state has no right to prohibit. But
that is only one of their defects.
2. Vagueness
The rules not only, by their own terms, sweep lawful
expression within their prohibition; they also suffer from
the other vices of overly vague speech regulation. Thus,
they discourage legitimate expression because prisoners
who wish to obey the rules cannot know what is
permitted as opposed to what may be punished. When
does a complaint become “unduly complaining”? At
what point does stating a grievance become “magnifying
grievances”? Will criticism of the prison cook and the
food he prepares be considered “defamatory” as “belit
tling the staff because of their incompetency”? To which
mailroom guard will a “political. . . or other view or
belief’ seem “inflammatory”? How can anyone possibly
know what will be considered “otherwise inappropriate”?
These rules are “unduly vague, uncertain and broad”
because, inter alia, they provide no “ascertainable stand
ard of conduct.” Baggett v. Bullitt, 377 U.S. 360, 366,
372 (1964). “Standards of permissible statutory vague
25 In the Court’s recent and unanimous decision in Police
Department o f Chicago v. Mosley, 408 U.S. 92 (1972), the Court
remarked that
“above all else, the First Amendment means that government
has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.. . . The essence of
this forbidden censorship is content control.” 408 U.S. at 95,
96.
See also Bachellar v. Maryland, 397 U.S. 564, 567 (1970), and
authorities cited.
34
ness are strict in the area of free expression.” NAACP v.
Button, 371 U.S. 415, 432 (1963); Smith v. California,
361 U.S. 147, 151 (1959). The Court recently explained
the basic principles in Grayned v. City o f Rockford, 408
U.S. 104 (1972):
“First, because we assume that man is free to steer
between lawful and unlawful conduct, we insist that
laws give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited,
so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning [cita
tions omitted; see section 3, infra]. Second, if
arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for
those who apply them [citations omitted]. A vague
law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad
hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory application [cita
tions om itted]. Third, but related, where a vague
statute ‘abut[s] upon sensitive areas of basic First
Amendment freedoms’ [citation omitted], it ‘oper
ates to inhibit the exercise of [those] freedoms’
[citation omitted]. Uncertain meanings inevitably
lead citizens to ‘steer far wider of the unlawful
zone . . . than if the boundaries of the forbidden
areas were clearly marked.’ [citations om itted].”
408 U.S. at 108-109.
In the present case both the terms of the rules and the
means of enforcing them are so imprecise and uncertain
that prisoners who do not wish to risk guessing at what
will be prohibited are deterred from expressing their true
views. “When one must guess at what conduct or
utterance” will be punished, “one will ‘steer far wider of
the unlawful zone . . .’ ” Keyishian v. Board o f Regents,
385 U.S. 589, 604 (1967), quoting from Speiser v.
35
Randall, 357 U.S. 513, 526 (1958); see also Groyned v.
City o f Rockford, supra, 408 U.S. at 109; Baggett v.
Bullitt, 377 U.S. 360, 367 (1964) (“men of common
intelligence must necessarily guess at its meaning and
differ as to its application”).
A further danger in the vagueness of the rules is that
they “grant such standardless discretion to public offi
cials that they are free to censor ideas and enforce their
own personal preferences.” Groyned v. City o f Rockford,
supra, 408 U.S. at 113, n. 22; see also Shuttlesworth v.
Birmingham, 394 U.S. 147, 150-151 (1969) (requiring
“narrow, objective, and definite standards to guide the
licensing authority” ); Cox v. Louisiana, 379 U.S. 536,
557-558 (1965). Here, the rules delegate “standardless
discretionary power to local functionaries, resulting in
virtually unreviewable prior restraints on First Amend
ment rights.” Cf Broadrick v. Oklahoma, ___ U.S. ___ ,
41 U.S.L.W. 5111, 51 15 (1973).26 It must also be
remembered that unlike the cases cited above, the
“functionaries” here are not judges, juries or elected
public officials; here the arbiter of First Amendment
expression is the prison mailroom guard, perhaps not the
safest repository of absolute power.27
26 Unlike the situation in Broadrick and United States Civil
Service Commission v. National Association o f Letter Carriers, _
U .S .___ , 41 U.S.L.W. 5122, 5130 (1973), where more specific
administrative regulations narrowed the scope of arguably vague
statutes, in the present case there are no narrowing standards at all
and, indeed, appellant Procunier’s testimony (A. 50-52) approving
open-ended interpretations of the rules actually expands and
compounds their vagueness.
27 “Acton’s classic proverb about the corrupting influence of
absolute power is true o f prison guards no less than o f other men.”
Landman v. Peyton, 370 F.2d 135, 140(4thCir. 1966) (Sobeloff,
J.).
36
A related consideration is that the vagueness of the
rules “lends itself to selective enforcement against unpop
ular causes.” NAACP v. Button , 371 U.S. 415 435
(1963); see also Grayned v. City o f Rockford, supra, 408
U.S. at 108-109. The rules furnish prison censors with “a
convenient tool for ‘harsh and discriminatory enforce
ment . . . against particular groups deemed to merit their
displeasure.’ ” Papachristou v. City o f Jacksonville, 405
U.S. 156, 170 (1972); Thornhill v. Alabama, 310
U.S. 88, 97-98 (1940). Since the censor is “adrift upon a
boundless sea” in approving various views, there is an
“inevitable tendency to ban the expression of unpopular
sentiments.” See Joseph Burstyn, Inc. v. Wilson, 343 U.S.
495, 504-505 (1952). Indeed, as the record here shows,
the censoring guards have used the broad rules against
what must be, for them, the most unpopular cause of
all—prison reform. Thus, the rules against letters that
“unduly complain” or “magnify grievances” or are
“defamatory” or “otherwise inappropriate” have been
used principally to suppress criticism of officials and
prison policy. The vagueness of the rules makes it a
practical impossibility to enforce them evenhandedly,
“resulting in virtually unreviewable prior restraints on
First Amendment rights.” Cf Broadrick v. Oklahoma,
supra, 41 U.S.L.W. at 5115.
3. No Fair Notice o f Punishable Conduct
Violation of the mail rules can result in a disciplinary
report and severe disciplinary punishment up to and
including confinement in segregation.28 But they author
28 Appellants complain in their Brief (pp. 22-23) of the district
court’s failure to distinguish the consequences o f violation of the
rules, stating that “considerations which might justify rejection of
a letter might well not justify the taking of disciplinary action.” It
37
ize punishment without giving fair notice of what is
prohibited, and this violates due process of law. See
Grayned v. City o f Rockford, supra, 408 U.S. at 108-109;
Papachristou v. City o f Jacksonville, supra; Baggett v.
Bullitt, supra, 377 U.S. at 367; Lanzetta v. New Jersey,
306 U.S. 451, 453 (1939); Connally v. General Const.
Co., 269 U.S. 385, 391 (1926)\ Landman v. Royster, 333
F.Supp. 621, 654-656 (E.D. Va. 1971).29 There is no
possible way for a prisoner to know when a guard may
consider his letter to “unduly complain,” or as too
critical or as “otherwise inappropriate,” etc. Forcing
prisoners to “guess at the meaning” of these vague rules,
on pain of severe disciplinary punishment, cannot be
squared with due process. See Landman v. Royster,
supra; cf. Keyishian v. Board o f Regents, supra, 385 U.S.
at 604; Baggett v. Bullitt, supra.
is true that the availability of “less drastic means” to serve a state
interest may indicate the invalidity of a regulation, Shelton v.
Tucker, 364 U.S. 479, 488 (1960); see also Police Department of
Chicago v. Mosley, 408 U.S. 92, 101, n. 8 (1972); United States v.
Robel, 389 U.S. 258, 268 (1967); Keyishian v. Board of Regents,
385 U.S. 589, 602 (1967); NAACP v. Alabama ex rel Flowers, 377
U.S. 288, 307-308 (1964), and this principle has obvious applica
tion to prison censorship rules, Note, Prison Mail Censorship and
the First Amendment, 81 Yale L.J. 87, 94-105 (1971). But it is not
for the district court to specify what consequences should attend
what violations of appellants’ rules. The rules indiscriminately
authorize punishment, or lesser consequences, for any violation, at
the option o f the censoring guard. The rules’ failure to curb this
absolute discretion is what the district court found invalid. In any
event, the rules given final approval by the court do distinguish
among consequences and thus eliminate appellants’ objection
(Supp. A. 198, 202-203).
29 As cases like Baggett and Landman indicate, it makes no
difference for due process purposes that the punishment is
administrative and not criminal. Cf. Morrissey v. Brewer, 408 U.S.
471 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970).
38
4. Absence o f Procedural Safeguards
Appellants’ mail censorship rules are a classic example
of a “prior restraint” on expression. This Court has
declared that any system of prior restraint is presump
tively invalid and bears a “heavy burden” of justification.
Organization for a Better Austin v. Keefe, 402 U.S. 415,
419 (1971); see also Healy v. James, 408 U.S. 169, 184
(1972). Nor is there any reason why principles disfavor
ing prior restraints should not be applied to prison mail
censorship. See generally Note, Prison Mail Censorship
and the First Amendment, 81 Yale L.J. 87, 105-111
(1971). Even if prisoners’ freedom of written expression
may be limited by rejecting letters under narrowly drawn
rules, censorship procedures are invalid “unless they
include built-in safeguards against curtailment of consti
tutionally protected expression . . .” Blount v. Rizzi, 400
U.S. 410, 416 (1971); c f Freedman v. Maryland, 380
U.S. 51 (1965); Speiser v. Randall, 357 U.S. 513, 521
(1958). In the prison context it would not be necessary
to have judicial review, with the burden of proof on the
censor; but some elementary safeguards against adminis
trative error or arbitrariness are clearly required. Very
simple procedures were prescribed by the court below,
354 F.Supp. at 1097, and by other courts in similar cases.
See Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex.
1972) , hearing en banc ordered, 476 F.2d 1285 (5th Cir.
1973) ; Sostre v. Otis, 330 F.Supp. 941, 944-946 (S.D.
N.Y. 1971); c f Laaman v. Hancock, 351 F.Supp. 1265
(D. N.H. 1972); Burnham v. Oswald, 342 F.Supp. 880
(W.D. N.Y. 1971). In response to the decision below,
appellants proposed new rules providing for notice of
disapproved letters and an administrative review (Supp.
A. 197-198). These were approved as satisfying the
district court (Supp. A. 211-212), and appellants have
39
not complained either below or in this Court that the
new rules leave any of their legitimate interests unpro
tected.
* * *
In short, the rules involved in this case violate all the
applicable principles for permissible regulation of expres
sion. In any other context they would be swiftly
condemned. The question, then, is whether the district
court erred in condemning them in the present case. We
submit that appellants have failed utterly to suggest any
valid reason why such gross departures from settled
principles should be permitted here. We further submit
that the regulations given final approval by the court
below fully protect every legitimate interest of appel
lants—and appellants have not asserted the contrary.
Again keeping in mind that First Amendment princi
ples are applied “in light of the special characteristics of
the . . . environment,” Healy v. James, 408 U.S. 169, 180
(1972); Tinker v. Des Moines School District, 393 U.S.
503, 506 (1969), we submit that the general principles
are sufficiently flexible to deal with administrative rules
of correctional agencies, just as they are with all other
governmental agencies. Of course, the results in particular
cases will often be different because in many prisoner
cases the officials will be able to justify certain restric
tions by showing that “engaging in the forbidden conduct
would ‘materially and substantially interfere with the
requirements of appropriate discipline in the operation’ ”
of the prison. Cf Healy, supra; Tinker, supra, 393 U.S. at
509. But such a showing must be “factually supported by
the record.” Cf. Healy, supra, 408 U.S. at 188; Branden
burg v. Ohio, 395 U.S. 444, 447 (1969); Pickering v.
Board o f Education, 391 U.S. 353, 570-573 (1968).
Justification for extraordinary restrictions on the rights
of individuals cannot be presumed. There must be
evidence of likely interference with a legitimate correc
40
tional interest.30 And there must be a showing that “the
incidental restriction on alleged First Amendment free
doms is no greater than is essential to the furtherance of
that interest.” Cf. Healy, supra, 408 U.S. at 189-190,
n. 20; Grayned v. City o f Rockford, 408 U.S. 104,
116-117 (1972) (“the regulation must be narrowly
tailored to further the State’s legitimate interest” ); Police
Department o f Chicago v. Mosley, 408 U.S. 92, 101, n. 8
(1972).31
Does the record in the present case support the
substantial inroads on these principles claimed by appel
lants as “within the discretion of prison administrators”?
30 “In our system, undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of
expression.” Tinker, supra, 393 U.S. at 508. In United States v.
Savage, ___ F .2d ___, No. 72-3145 (9th Cir. Aug. 8, 1973), the
Ninth Circuit, relying on the district court decision in this case,
held that interception of a prisoner letter was unconstitutional
“absent a showing of some justifiable purpose of imprisonment or
prison security.”
31 See also United States v. O’Brien, 391 U.S. 367, 377 (1968);
United States v. Robel, 389 U.S. 258, 268 (1967); Keyishian v.
Board of Regents, 385 U.S. 589, 602, 609 (1967); Shelton v.
Tucker, 364 U.S. 479, 488 (1960). Specifically applying this
principle in prisoners’ rights cases, see O’Malley v. Brierley, A ll
F.2d 785, 796 (3d Cir. 1973); McDonnell v. Wolff, ___ F .2d ____,
No. 72-1331 (8th Cir. Aug. 2, 1973); Goodwin v. Oswald, 462
F.2d 1237, 1244 (2d Cir. 1972); Barnett v. Rodgers, 410 F.2d 995,
1000 (D.C. Cir. 1969); Jackson v. Godwin, 400 F.2d 529, 541 (5th
Cir. 1968); Rowland v. Sigler, 327 F.Supp. 821 (D. Neb. 1971),
aff’d 452 F.2d 1005 (8th Cir. 1971); Hillery v. Procunier, ___
F.Supp.___ , No. C-71 2150 SW (N.D. Cal. Aug. 16, 1973)
(3-judge court); State ex rel. Thomas v. State o f Wisconsin, 55
Wis.2d 343, 198 N.W.2d 675 (1972).
As the court explains in Hillery v. Procunier, supra, the analysis
of Judge Mansfield in Carothers v. Follette, 314 F.Supp. 1014,
1024 (S.D. N.Y. 1970), is consistent with the above analysis:
“That is, not only must the state show a compelling interest in
limiting the prisoners’ rights, but the method it chooses to effect
the limitation must be related—‘reasonably and necessarily’- t o the
end sought.” (slip op. at 11; emphasis by the Court).
41
In this case appellants presented no evidence, not even
their own opinions, to show any legitimate justification
for the rules in question. Assuming that they had some
legitimate interest, they did not show that less restrictive
means would be ineffective to protect it. On this record,
there is “no plausible basis” for their action. Carothers v.
Follette, 314 F.Supp. 1014, 1024 (S.D. N.Y. 1970);
accord Worley v. Bounds, 355 F.Supp. 115 (W.D. N.C.
1973); Adams v. Carlson, 352 F.Supp. 882, 896 (E.D. 111.
1973).32 The findings of the court below are unassailable:
that the rules are not “reasonable and necessary,” are
“without any apparent justification” or any “conceivable
justification on the grounds of prison security” and
“would not appear necessary to further any of these
functions [of prisons in America].” 354 F.Supp. at 1096
(emphasis by the court).
The record is barren of any justification for appellants’
rules. Even if we look elsewhere for empirical justifica
tion for appellants’ censorship rules, we can find none.
All the secondary material is to the contrary. Thus, it is
generally recognized that the sole purpose served by
prison mail censorship is to protect the security of the
institution by preventing the introduction of contraband
(drugs, weapons, cash, etc.) and the formation of escape
or criminal plans. See generally, California Board of
32 The need for prison officials to introduce evidence of
justification, rather than rely on courts to speculate, was well
explained by the Fourth Circuit:
“ [p] rison officials are not judges. They are not charged by law
and constitutional mandate with the responsibility for
interpreting and applying constitutional provisions, and they
are not always disinterested persons in the resolution of
prison problems. We do not denigrate their views but we
cannot be absolutely bound by them.” Brown v. Peyton, 437
F.2d 1228, 1232 (4th Cir. 1971).
42
Corrections, California Correctional System Study: Insti
tutions, 40 (July, 1971) (the “Keldgord Report” )- The
comprehensive Keldgord Report sharply criticized appel
lants’ mail censorship policy on practical grounds, stating
that “it is senseless to do pointless things.” The Report
pointed out that it might make sense to inspect incoming
mail for contraband, “but the practice of reading every
thing that goes in and out is unnecessary and wasteful,
and fosters inmate resentment.” Id. Indeed, as to
“rehabilitating” prisoners, it is as likely that mail censor
ship impedes rehabilitation as that it furthers it. See
Note, Prison Mail Censorship and the First Am endm ent,
81 Yale L.J. 87, 103 (1971), and authorities cited
therein; see also Note, The Right o f Expression in Prison,
40 S. Cal. L. Rev. 407 (1967); Singer, Censorship o f
Prisoner Mail and the Constitution, 56 A.B.A.J. 1051
(1970); Stem, Prison Mail Censorship: A Non-
Constitutional Analysis, 23 Hastings L.J. 995 (1972). In
short, all the commentators urge that there be no
censorship of content at all. The decision below, which
continues to authorize censorship, begins to appear quite
conservative.
A growing number of decisions have found, on the
evidence in those cases, that the prison officials have no
legitimate interest in censoring outgoing mail and have
enjoined such censorship. In Guajardo v. McAdams, 349
F.Supp. 211 (S.D. Tex. 1972), hearing en banc ordered,
476 F.2d 1285 (5th Cir. 1973), the court found that
“total censorship serves no rational deterrent, rehabilita
tive of prison security purposes.” The court therefore
enjoined all censorship of outgoing mail; incoming letters
could be rejected only if they contained specific enumer
ated contents (e.g. escape plots, codes, contraband, etc.)
and if the prisoner was afforded a fair opportunity to
protest any rejection. Accord, Lamar v. Kern, 349
43
F.Supp. 222 (S.D. Tex. 1972); Gates v. Collier, 349
F.Supp. 881, 898-899 (N.D. Miss. 1972); Palmigiano v.
Travisono, 317 F.Supp. 776 (D. R.I. 1970).33
Aside from judicial inquiries, responsible correctional
authorities themselves have recently examined prison
mail censorship practices and have found them quite
unnecessary and even counterproductive. The prestigious
National Advisory Commission on Criminal Justice
Standards and Goals, which is composed of the country’s
outstanding authorities in the field and was formed to
advise the federal Law Enforcement Assistance Adminis
tration on standards in making its grants, promulgated its
Standards in January, 1973. Standard 2.15, on Free
Expression and Association, unequivocally rejects the
views advanced by appellants’ lawyers as unsound correc
tional practice. Specifically on mail censorship, Standard
2.17 flatly provides that “neither incoming nor outgoing
mail should be read or censored.” For the convenience of
the Court, we have reproduced the pertinent excerpts
from the Standards and their commentary in the Appen
dix to this brief, infra.
In addition, the Center for Criminal Justice of the
Boston University School of Law has recently developed
and published the Model Rules and Regulations on
Prisoners’ Rights and Responsibilities (1973). Rules IC-1
and IC-2 provide for unread and uncensored correspond
ence, absent exceptional circumstances. That the Model
33 In addition, many states have voluntarily abandoned all
censorship. See, e.g., Michigan Department o f Corrections, Depart
mental Directive CC-10 (Oct. 17, 1972) (reported at 2 Prison Law
Rptr. 177), stating that prisoners are “permitted to send uncen
sored sealed letters to any person or organization.” See also
Washington Office of Adult Corrections, Memorandum No. 70-5
(Nov. 6, 1970); Pennsylvania Bureau of Correction, Administrative
Directive No. 3 (effective Dec. 15, 1970).
44
Rules do not represent just an idealist’s notion of
prisoners’ rights is illustrated by the Foreward; the
Commissioner of Corrections of Massachusetts states that
the Rules are “a long overdue instrument for the
development of sound correctional policy,” provide “a
viable blueprint from which a sound correctional manage
ment system can be constructed,” and are “an invaluable
tool” for correctional administrators striving to build
“systems that operate fairly, thoroughly, and effec
tively.”
In other words, the only real controversy in correc
tions today concerns whether mail should be read at all,
not what contents should be censored or punished. That
is not an issue the Court must now resolve, but it surely
indicates that appellants have failed to show any persua
sive reasons for the overbroad, vague and restrictive rules
involved in this case. Appellants have not identified any
provision of the rules finally approved by the district
court on July 20, 1973 (Supp. A. 194-203), that they
claim does not adequately protect legitimate state inter
ests. We submit that their interests are more than
adequately protected by the approved rules; and the
judgment below should be affirmed.
in.
THE DISTRICT COURT PROPERLY INVALIDATED
APPELLANTS’ FORMER ABSOLUTE PROHIBITION
AG AINST USE BY ATTORNEYS OF LAW
STUDENT OR PARALEGAL INVESTIGATORS TO
INTERVIEW PRISONERS ON THEIR BEHALF, AND
THE NEW REGULATION APPROVED BY THE
COURT BELOW FULLY PROTECTS EVERY LEGIT
IMATE INTEREST OF APPELLANTS
Once again, in order to understand what is at stake on
this appeal, it is necessary to compare the former rule
45
invalidated by the district court with the rule given final
approval on July 20, 1973.34 Only then can it be seen
exactly what the court decided and what appellants have
actually been ordered to do. The former rule authorized
attorneys representing prisoners to use investigators for
interviewing prisoners, but limited the class to state-
licensed investigators and members of the State Bar-and
no others. Thus, an attorney could not even send a
student or assistant as a messenger to have papers signed.
As appellants state (Brief, p. 24), after the decision below
but before the final order, they voluntarily opened the
class to include law students certified under the rules of
the State Bar. This is reflected in the final order (Supp.
A. 198). The only other addition to the class of the
former rule consists of “legal paraprofessionals certified
by the State Bar or other equivalent legal professional
body and sponsored by the attorney of record” (Id.). At
the present time there is no paraprofessional certification
procedure by the State Bar or, so far as we are aware, by
any other legal professional body in California.35
34 Appellants’ Brief seriously misrepresents the record and
distorts the issue presented. Although their Brief was filed about a
month after the district court’s final order of July 20, 1973 (Supp.
A. 211-212), appellants fail to mention the provisions of that order
and make a number of misleading and erroneous assertions about
what the court below ordered. Thus, appellants state (p. 24-25)
that they were ordered to include all full-time legal assistants
among the class of attorneys’ investigators authorized to interview
prisoners. In their statement of the Question Presented (p. 2), they
claim the class includes “full time lay employees” o f attorneys.
They further state (p. 26-27) that “all law students” and “other
paraprofessionals” must be accorded all “attorney’s privileges.”
These assertions are untrue.
35 In July 1973, the California State Bar issued a report
recommending the adoption of a comprehensive new statute, to be
entitled the “Certified Attorney Assistant Act”, which would set
46
Accordingly, appellants are not now required to admit
any paraprofessionals as investigators. The only law
students they must admit are those receiving State Bar
certification, and appellants took this step voluntarily
and not by court order. Finally, it is misleading for
appellants to emphasize that they were ordered to permit
“confidential” communications by “non-attorneys” ,
because the issue tried below was whether appellants may
arbitrarily bar all law students and paralegal persons from
acting on behalf of attorneys, not whether all such
communications must be confidential.36 In summary, the
relief actually ordered by the district court is very narrow
and should, under the precedents in this Court and on the
record here, be affirmed.
The constitutional prohibition against depriving a
person of liberty without due process of law has, as a
necessary corollary, the requirement that prisoners be
up standards for certifying legal assistants. State Bar o f California,
Reports (July, 1973). The recommendation was based on detailed
investigation and a finding that “Increased use by lawyers of the
services of legal assistants will be necessary in order for members of
the State Bar to continue to furnish quality legal services to the
public at reasonable cost.” Id. at 2. Directly applicable to the
present case was the Bar’s finding that “As lawyers become more
efficient and extend their abilities through the use o f well-trained
Certified Attorney Assistants, additional thousands of persons will
receive quality legal services in situations where they otherwise
would not have received legal assistance at all” Id. at 4. (emphasis
added)
36 We assume that the attorney-client privilege o f California
Evidence Code §952 would cover communications between
prisoners and attorneys’ investigators. But appellants’ rule finally
approved by the court below omitted, over appellees’ objection,
the word “confidential”, thus creating a possible ambiguity as to
appellants’ understanding of what they have been ordered to do
(see Supp. A. 209).
47
afforded access to the courts to set aside convictions
obtained in violation of their federal constitutional rights
or to remedy invasions of their constitutional rights while
incarcerated.37 It has long been clear that this paramount
right of prisoner access to the courts to present their
constitutional claims invalidates prison regulations which
effectively impair that right. Ex parte Hull, 312 U.S. 546
(1941). Not only may state officials not obstruct access
to the courts, but “due process requires, at a minimum,
that absent a countervailing state interest o f overriding
significance, persons forced to settle their claims of right
and duty through the judicial process must be given a
meaningful opportunity to be heard.” Boddie v. Con
necticut, 401 U.S. 371, 377 (1971) (emphasis added).
The Court in Boddie, relying on precedents established in
the criminal defense context, reasoned that where the
“judicial proceeding becomes the only effective means of
resolving the dispute at hand . . . denial of a defendant’s
full access to that process raises grave problems for its
legitimacy.”38
In Johnson v. Avery, 393 U.S. 483 (1969), the Court
recognized that effective access to the courts for many
37 See, e.g., Kaufman v. United States, 394 U.S. 217, 226
(1969); Johnson v. Avery, 393 U.S. 483 (1969); Mooney v.
Holohan, 294 U.S. 703, 713 (1935); see also McDonnell v. Wolff,
___ F.2d ___ , No. 72-1331 (8th Cir. Aug. 2, 1973); Nolan v.
Scafati, 430 F.2d 548, 551 (1st Cir. 1970); Landman v. Royster,
333 F.Supp. 621, 656 (E.D. Va. 1971); Cross v. Powers, 328
F.Supp. 899, 901 (W.D. Wis. 1971). The Seventh Circuit’s recent
decision in Adams v. Carlson,___ F .2d ___, 13 Cr. L. Rptr. 2532
(7th Cir. Aug. 23, 1973), contains a useful analysis of restrictions
on prisoner access to the courts.
38 United States v. Kras, 409 U.S. 434 (1973), does not limit
the application of Boddie to this case, for here, like Boddie and
unlike Kras, a “judicial proceeding” is “the only effective means”
o f challenging a prisoner’s conviction or sentence or the constitu
tionality of his treatment while in prison.
48
prisoners is meaningless unless some form of legal
assistance is provided. The Court emphasized that “ for
the indigent as well as for the affluent prisoner, post
conviction proceedings must be more than a formality.”
393 U.S. at 486. The Court held that unless “the state
provides some reasonable alternative to assist inmates in
the preparation of petitions for post-conviction relief’ it
may not bar inmates from furnishing assistance to other
inmates. Mr. Justice White, dissenting, would not have
struck down the anti-prisoner assistance regulation but
would have ruled in a proper case that “the state must
provide access to the courts by insuring that those who
cannot help themselves have reasonably adequate assist
ance in preparing their post-conviction papers.” 393 U.S.
at 502. Indeed, Mr. Justice White’s opinion in Johnson
states what is basically at stake in the instant case:
“The illiterate or poorly educated and inexperienced
indigent cannot adequately help himself and . . . un
less he secures aid from some other source he is
effectively denied the opportunity to present to the
courts what may be valid claims for post-conviction
relief.” 393 U.S. at 498.
In Younger v. Gilmore, 404 U.S. 15 (1971), this Court
affirmed a decision requiring California prisons to provide
law libraries or other means of meeting the legal needs of
prisoners. Gilmore v. Lynch, 319 F.Supp. 105 (N.D. Cal.
1970). If state officials are required to take affirmative
action or adopt expensive programs to provide adequate
legal resources, as in Gilmore, it follows, a fortiori, that
they may not maintain regulations that arbitrarily pre
clude the use of available legal assistance in the
representation of prisoners.
This Court’s decisions in Gilmore, Boddie and John
son, and the earlier decisions in Griffin v. Illinois, 351
U.S. 12 (1956), and Douglas v. California, 372 U.S. 353
49
(1963), teach that the states cannot deny to indigents the
necessary means for obtaining a fair hearing of their
possibly valid constitutional claims. The Court’s decisions
have recognized practical reality not merely by striking
down absolute barriers to the courts but by declaring that
effective access to the judicial process is required when
fundamental interests like liberty are at stake. For
example, in Douglas, as here, the prisoner was not totally
barred from filing his appeal; and in Johnson, as here, he
was not totally barred from filing his writ. But in both
cases, as here, the state practice prevented effective use of
the judicial process. In Gilmore, the State was required to
take affirmative action to assure access to the courts.
Jailhouse lawyers were permitted by Johnson because of
the function they serve-as tools enabling prisoners to
bring their claims before the courts. Mr. Justice White
noted in Johnson that “unless the help the indigent gets
from other inmates is reasonably adequate for the task,
he will be as surely and effectively barred from the courts
as if he were accorded no help at all.” 393 U.S. at 499.
As foreseen, the district court in the present case found
that other tools are needed as well. Just as the paramount
interest in making the courts fully available for the
resolution of constitutional claims compelled the results
in Johnson and Gilmore, it requires affirmance of the
decision in the present case. Post-conviction remedies
theoretically available to all in California are not in fact
available if the State denies indigents available legal
assistance to use them. Because the State denies the
prisoner both his livelihood (e.g., to hire a lawyer or a
private investigator) and his liberty (e.g., to consult a
public defender or an OEO legal services attorney and
their paralegal assistants), the State has erected very
effective barriers to the judicial process—unless the State
permits available alternative sources of legal help.
50
Access to the courts necessarily involves the right to
seek and receive assistance from attorneys. The courts
have consistently invalidated action by prison officials
that impeded communication and consultation either by
mail or in person.39
While appellants argue that their rule in this case,
completely forbidding the use of law students or para
legals for interviewing, does not impair access to the
courts,40 the uncontested evidence on which the court
below based its findings of fact was that the rule, in
conjunction with the remoteness of most California
prisons, “makes personal visits to inmate-clients so time
consuming and inconvenient that attorneys are reluctant
to make such visits.” 354 F.Supp. at 1098. Preparation of
this case was itself hindered and delayed because appel
lants refused to permit counsel for appellees to use
supervised law students to interview their clients (Supp.
A. 186). The court below concluded that the rule
arbitrarily denied necessary legal assistance to indigent
prisoners.
39 See, e.g., McDonnell v. Wolff,___ F .2 d ___ , No. 72-1331
(8th Cir. Aug. 2, 1973), affg 342 F.Supp. 616 (D. Neb. 1972);
LeVier v. Woodson, 443 F.2d 360 (10th Cir. 1971); Nolan v.
Scafati, 430 F.2d 548 (1st Cir. 1970); Coleman v. Peyton, 362
F.2d 905, 907 (4th Cir.), cert, denied, 385 U.S. 905 (1966); cf
Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972); Smith v. Robbins,
454 F.2d 696 (1st Cir. 1972); Morales v. Turman, 326 F.Supp. 677
(E.D. Tex. 1971); Marsh v. Moore, 325 F.Supp. 392, 395 (D. Mass.
1971); In re Jordan, 1 Cal.3d 930 (1972). In Adams v. Carlson,
___ F .2 d ___, 13 Cr. L. Rptr. 2532 (7th Cir. Aug. 23, 1973), a
case quite analogous to the present one, the Seventh Circuit
recently struck down a prison restriction requiring attorneys to
interview their clients through a screen, reasoning that the
restriction unjustifiably interfered with the ease o f personal
interviewing.
40 Appellants’ contention that there is no right to appointed
counsel in post-conviction matters completely misses the point.
Indeed, as the Court recognized in Johnson v. Avery, 393 U.S. 483,
489, 490 (1969), the fact that state-provided attorneys are not
generally available in these matters increases the need for law
student, paralegal and other voluntary assistance.
51
As the record shows and as is obvious, attorneys
simply cannot agree to represent very many prisoners,
with little or no compensation, if they must take full
days to journey to remote California prisons personally
to interview clients or prospective clients. Denying the
right to use law students or paralegal interviewers means,
in many cases, the difference between the prisoner having
counsel and not having counsel. “ [T]he inmate’s ability
to present his case to the court necessarily suffers
substantially from the absence of professional repre
sentation.” 354 F.Supp. at 1098.
In attempting to give a prisoner effective represen
tation, or in seeking the information required to advise
him intelligently, an attorney may need the services or
assistance of others. In recent years lawyers have come to
rely more and more on the aid of paraprofessionals whom
they have trained and who, working under their super
vision, are a vital part of the legal team.
The use of paraprofessionals has received little atten
tion from the courts, but has been encouraged by many
professional organizations, including the American Bar
Association. The new Code of Professional Responsibility
adopted by the ABA specifically permits a lawyer to
delegate tasks to lay persons:
“A lawyer often delegates tasks to clerks, sec
retaries, and other lay persons. Such delegation is
proper if the lawyer maintains a direct relationship
with his client, supervises the delegated work and
has complete professional responsibility for the
work product. This delegation enables a lawyer to
render legal services more economically and effi
ciently.” Canon 3, Ethical Consideration 3-6.
In a speech before the National Conference on the
Judiciary at Williamsburg in 1971, President Nixon said
that “We should open our eyes-as the medical profession
52
is doing—to the use of para professionals in the law.”
N.Y.L.J., March 12, 1971, p. 4. See also Brickman,
Expansion o f the Lawyering Process Through A New
Delivery System: The Emergence and State o f Legal
Paraprofessionalism, 71 Col. L. Rev. 1153 (1971).
If the use of paraprofessionals is merely desirable as a
general matter, it is absolutely essential if prison inmates
are to receive vital assistance in obtaining access to the
courts. Most prisoners are indigent, and lack the funds
needed to retain a lawyer or even to pay for a single
interview. They are dependent on the assistance of
attorneys and organizations willing and able to represent
them without fee. The supply of attorneys able to serve
in this capacity is obviously limited. See Johnson v.
Avery, supra, 393 U.S. at 494; c f In re Tucker, 5 Cal.3d
171, 183 (1971). Courts and commentators have recog
nized that providing indigent prisoners with essential legal
services is a burdensome problem to the Bar, and have
concurred in recommending the utilization of laymen and
law students to help fill the gap. See, e.g., Johnson v.
Avery, supra, 393 U.S. at 489, 498;41 Argersinger v.
Hamlin, 407 U.S. 25, 40 (1972);42 Novak v. Beto, 453
F.2d 661, 664 (5th Cir. 1971) (encouraging any source of
legal assistance to prisoners, “whether it be licensed or
unlicensed to practice law”); Hooks v. Wainwright, 352
F.Supp. 163 (M.D. Fla. 1972); Gilmore v. Lynch, 319
F.Supp. 105, 110 (N.D. Cal. 1970), a ff’d sub nom.
Younger v. Gilmore, 404 U.S. 15 (1971); Jacob &
41 “The cooperation and help of laymen, as well as of lawyers, is
necessary if the right o f ‘ [r] easonable access to the courts’ is to be
available to the indigents among us.” (Douglas, J., concurring).
42 “Law students as well as practicing attorneys may provide an
important source of legal representation for the indigent”
(Brennan, J., concurring).
53
Sharma, Justice After Trial: Prisoners’ Need for Legal
Services in the Criminal-Correctional Process, 18 Kan. L.
Rev. 493 (1970).
Using law students and paralegal persons in counseling
prisoners saves attorneys the considerable time that is
required by personal visits to distant institutions and in
waiting even at nearby prisons (Supp. A. 184-186).
Following an attorney’s detailed instructions, a para-
professional assistant can obtain essential facts from the
prisoner, and transmit the attorney’s advice or recom
mendations to him.43 Communication by mail is no
substitute for personal communication, where careful
questioning can elicit the essential relevant facts that few
prisoners are able to present on their own.44 Obtaining
the same complete details by mail is often impossible, or
requires a prolonged exchange of queries and responses.
Nor does the mail permit the assessment of credibility, an
essential element in any decision whether to render
voluntary assistance.
The American Bar Association recognizes the value of
using law student services for these purposes, stating that
the lawyer
43 Appellants’ rule permits visits by state-licensed investigators,
but their services are o f course unavailable to indigent inmates who
cannot pay their fees. Moreover, their aid is less valuable in this
context than that of the paraprofessional who works closely with
the attorney, and whose training is directed toward awareness of
specific legal issues.
44“ [T]he most important part o f a legal assistance plan is not
the law books or library, or the availability of decisions, but the
opportunity to consult with an attorney, or at least a person o f
good common sense and experience who can, in a straightforward
and complete manner, set forth the inmate’s claim in under
standable fashion.” Stevenson v. Mancusi, 325 F.Supp. 1028,1032
(W.D.N.Y. 1971).
54
. . may avail himself of the assistance of the law
student in many of the fields of the lawyer’s work,
such as examination of case law finding and inter
viewing witnesses,. . . delivering papers, conveying
important messages, and other similar matters.”
Canon 3, Ethical Consideration 3-6, footnote 3.
The Rules for Practical Training o f Law Students
promulgated by the California State Bar Board of
Governors45 authorize supervised law students to engage
in a wide range of activities including
“Conducting investigations and interviewing clients
and witnesses for the purpose of ascertaining facts
and informing the supervising lawyer thereof.” Rule
VII.C.
But none of these activities was permitted by appellants.
There is no dispute as to the need to utilize law
students to assist California prisoners. Indeed, many law
school programs authorized by appellants send sub
stantial numbers of students into the prisons (A. 61-62).
The students in such programs, however, are not closely
supervised by attorneys and could not meet the standards
of State Bar certification of law students (A. 113-114;
A. 35-36; A. 62; Supp. A. 188). Nor do appellants make
any inquiry into the students’ qualifications or subject
them to any security clearance (A. 62). This shows the
arbitrariness of appellants’ rule involved here, which
allows interviews by essentially unsupervised students in
school programs while flatly prohibiting interviews by
law student assistants closely supervised by attorneys.
The rule also arbitrarily discriminates against law students
supervised by attorneys with organizations like the
NAACP Legal Defense Fund or the American Civil
45 State Bar of California Reports (Feb. 1970).
5 5
Liberties Union, since such organizations often deal with
problems outside the scope of the school programs—e.g.,
problems of prison reform such as the instant case.
Appellants’ rule prohibiting interviews by paralegal
assistants, especially law students, thus excludes a signif
icant source of legal assistance to prisoners. As the
California Bar found, n. 35, supra, and as the record here
shows (A. 126-130), there is a growing supply of highly
trained and academically qualified paralegal personnel.
See also Larson, Legal Paraprofessionals: Cultivation o f a
New Field, 59 A.B.A.J. 631 (1973) (Minnesota program).
But these persons are completely barred by appellants’
rule. In view of the unmet need for legal assistance, the
rule is an invalid infringement on the fundamental right
of access to the courts. See Younger v. Gilmore, 404 U.S.
15 (1971); Johnson v. Avery, 393 U.S. 483 (1969)\Mead
v. Parker, 464 F.2d 1108, 1110 (9th Cir. 1972). In
Johnson v. Avery, supra, this Court acknowledged a
danger to prison discipline presented by “jailhouse
lawyers” but nevertheless held invalid a regulation barring
them from assisting other prisoners seeking access to the
courts. 393 U.S. at 488. Surely the burden of justifying a
prohibition against consulting trained and supervised
assistants to lawyers should be at least as great as the
burden of justifying a bar against consulting an untutored
“jailhouse lawyer.”46
46 The courts have uniformly held that the burden o f justifying
a rule impairing access to the courts rests on the prison officials,
not the prisoners. See, e.g., McDonnell v. W olff,___ F .2 d ___ ,
No. 72-1331 (8th Cir. Aug. 2, 1973); Novak v. Beto, 453 F.2d 661,
664 (5th Cir. 1971); Wainwright v. Coonts, 409 F.2d 1337, 1338
(5th Cir. 1969); Van Erman v. Schmidt, 343 F.Supp. 337, 379
(W.D. Wis. 1972); Cross v. Powers, 328 F.Supp. 899, 904 (W.D.
Wis. 1971).
56
The district court gave more than adequate deference
to any legitimate interest of appellants. It accepted
without scrutiny the offhand opinion of appellant Pro-
cunier (A. 63-64), that uncontrolled use of investigators
created security problems by letting in “some people we
chose not to have in our institutions” . There was no
proof of involvement of unlicensed investigators in any
incidents (A. 63; A. 35-36—answer to interrogatory 7),
and no showing of even a “very distant possibility of
harm” arising from their admission to prisons. Cf. United
Mine Workers v. Illinois State Bar Association, 389 U.S.
217, 223 (1967). Certainly there was nothing to indicate
that use of closely supervised and Bar-certified students
or paraprofessionals would interfere with any legitimate
interest of appellants. The final order of the district court
imposes stringent safeguards on the use of paralegals
(Supp. A. 198-200). The relief ordered by the Court
below was the most restrained possible, and appellants
have offered no reason for overturning it.
In the only other case squarely in point, A rif v. McGrath, No.
71-C-1388 (E.D. N.Y. Dec. 9, 1971), die court held that the New
York City Department of Corrections had impaired the prisoners’
right to counsel by refusing to allow them to consult with their
attorney’s non-admitted assistants. The court found that consulta
tion with lay assistants was necessary to implement “the right of
parties in the federal courts to conduct their case ‘personally or by
counsel’. 28 U.S.C. Section 1654.” (slip opinion pp. 21-22). It
ordered the defendants to “permit visits to the plaintiffs by law
students, law school graduates or investigators authorized in
writing by their attorneys” and directed them not to “monitor or
eavesdrop on such visits.” (slip op. p. 23).
57
CONCLUSION
For the reasons stated, the judgment of the district
court should be affirmed.
Respectfully submitted,
WILLIAM BENNETT TURNER
LOWELL JOHNSTON
JULIAN FOWLES
12 Geary Street
San Francisco, California 94108
ALICE DANIEL
University of California
Hastings College of the Law
198 McAllister Street
San Francisco, California 94102
MARIO OBLEDO
SANFORD JAY ROSEN
Mexican American Legal Defense
and Educational Fund, Inc.
145 Ninth Street
San Francisco, California 94102
ANTHONY G. AMSTERDAM
Stanford Law School
Stanford, California 94305
JACK GREENBERG
JAMES M. NABRIT, III
STANLEY A. BASS
10 Columbus Circle
New York, New York 10019
Attorneys for Appellees
la
APPENDIX
Pertinent Excerpts from the Standards o f the
National Advisory Commission on Criminal
Justice Standards and Goals
(Jan. 1973)
STANDARD 2.15
FREE EXPRESSION AND ASSOCIATION
Each correctional agency should immediately develop
policies and procedures to assure that individual
offenders are able to exercise their constitutional right of
free expression and association to the same extent and
subject to the same limitations as the public-at-large.
Regulations limiting an offender’s right of expression and
association should be justified by a compelling state
interest requiring such limitation. Where such justifica
tion exists, the agency should adopt regulations which
effectuate the state interest with as little interference
with an offender’s rights as possible.
* * * * *
Justification for limiting an offender’s right of expres
sion or association would include regulations necessary to
maintain order, or to protect other offenders, correc
tional staff, or other persons from violence, or the clear
threat of violence. The existence of a justification for
limiting an offender’s rights should be determined in light
of all the circumstances including the nature of the
correctional program or institution to which he is
assigned.
Ordinarily, the following factors would not constitute
sufficient justification for an interference with an
offender’s rights unless present in a situation which
constituted a clear threat to personal or institutional
security.
2a
1. Protection of the correctional agency or its staff
from criticism, whether or not justified.
2. Protection of other offenders from unpopular ideas.
3. Protection of offenders from views correctional
officials deem not conducive to rehabilitation or other
correctional treatment.
4. Administrative inconvenience.
5. Administrative cost except where unreasonable and
disproportionate to that expended on other offenders for
similar purposes.
Correctional authorities should encourage and facili
tate the exercise of the right of expression and associa
tion by providing appropriate opportunities and facilities.
[Commentary omitted]
STANDARD 2.17
ACCESS TO THE PUBLIC
Each correctional agency should immediately develop
and implement policies and procedures to fulfill the right
of offenders to communicate with the public. Correc
tional regulations limiting such communication should be
consistent with Standard 2.15. Questions of rights of
access to the public arise primarily in the context of
regulations affecting mail, personal visitation, and the
communications media.
Mail. Offenders should have the right to communicate
or correspond with persons or organizations and to send
and receive letters, packages, books, periodicals, and any
other material that can be lawfully mailed. The following
additional guidelines should apply:
1. Correctional authorities should not limit the
volume of mail to or from a person under supervision.
2. Correctional authorities should have the right to
inspect incoming and outgoing mail, but neither incoming
3 a
nor outgoing mail should be read or censored. Cash,
checks, or money orders should be removed from
incoming mail and credited to offenders’ accounts. If
contraband is discovered in either incoming or outgoing
mail, it may be removed. Only illegal items and items
which threaten the security of the institution should be
considered contraband.
3. Offenders should receive a reasonable postage
allowance to maintain community ties, (emphasis added)
* * * * *
Commentary
* * * * *
Mail. In censoring and regulating mail, correctional
authorities have not limited themselves to keeping out
harmful or potentially dangerous objects or substances.
The censorship of mail all too often has been utilized to
exclude ideas deemed by the censor to be threatening or
harmful to offender or critical of the correctional agency.
These efforts result in the diversion of manpower from
other tasks and, to avoid excessive manpower drains,
limitations on the volume of correspondence permitted.
Censorship and limitations on correspondence directly
generate inmate hostilities and serve to make correctional
progress more difficult.
Courts began to look critically at this process when it
came to their attention that correctional authorities were
limiting access to courts. Instances of failure to mail
complaints, invasion of privileged attorney-client com
munications, and reprisals against inmates for attempting
to send out information about deficient conditions were
documented. Limitations on access to religious material
also were discovered and criticized.
Contraband must be excluded from correctional
institutions to preserve their security and good order by
4 a
limiting the development of inmate power groups that
often results from acquisition of contraband. The
standard authorizes the correctional administrator to
inspect incoming and outgoing mail for contraband but
not to read or censor the contents.
Correctional authorities have a duty to insure that
offenders are able to correspond with members of the
public. A reasonable postage allowance should be pro
vided each offender as part of an affirmative program to
help him retain community ties.