Procunier v. Martinez Appellant's Reply Brief

    Jin %  Supreme ©mart
OF THE

Mttitrii States
O ctober T e r m , 1972

No. 72-1465

R a y m o n d  K. P roctinier , Director, 
California Department of Corrections, et al., 

Appellants,
vs.

R obert M a r t in e z , et al.,

Appellees.

On Appeal from the United States District Court 
for the Northern District of California

APPELLANTS’ REPLY BRIEF

E velle  J . Y o u n g e r ,
Attorney General of the State of California.

E d w a r d  A . H i n z , J r .,
Chief Assistant Attorney General— 

Criminal Division,

D oris H . M a ie r ,
Assistant Attorney General—Writs Section.

R obert  R . G r a n u c c i ,
Deputy Attorney General,

W . E ric  C o l l in s ,
Deputy Attorney General.

T h o m a s  A . B r a d y ,
Deputy Attorney General.

6000 State Building,
San Francisco, California 94102,

Attorneys for Appellants.

P E R N A U - W A L S H  P R IN T IN G  C O . -  5 6 2  M IS S IO N  S T R E E T  - S A N  F R A N C IS C O  - C A  9 4 1 0 5



Subject Index

Page
Argument ...................................................................................................... 1

I
Federal abstention is required ...................................................  1

II
The mail regulations are not of federal constitutional 

dimension .......................................................................................... 4

III
The paraprofessional and law student regulations............ 5

IV
The procedural due process requirements ............................ 7

Conclusion ...................................................................................................... 9

Table of Authorities Cited

Cases Pages

Clutchette v. Procunier, 328 F.Supp. 767 (N.D. Cal. 1971) 7 ,8

Frye v. Henderson, 474 F.2d 1263 (5th Cir. 1973) ................  5

In re Harrell, 2 Cal.3d 675, 87 Cal.Rptr. 504 (1970) ............ 3

In re Jordan, 7 Cal.3d 930, 103 Cal.Rptr. 849 (1972) .........  2 ,3

Reaves v. Superior Court, 22 Cal.App.3d 587, 99 Cal.Rptr.
156 (1971) ............................................................................................  3

United States v. Wilson, 447 F.2d 1 (9th Cir. 1973) ............ 5

Codes
Penal Code, Section 2600 ...................................................................  2

Rules
Rules of the Director of the California Department of 

Correction:
Director’s Ride DP 1003 ............................................................ 7
Director’s Rule D 1201 ................................................................ 3



Jn tlj? li’ttpmnc (Emtrt
OF THE

United States

O ctober  T e r m , 1972

No. 72-1465

R a y m o n d  K. P r o c u n ie r , Director, 
California Department of Corrections, et al., 

Appellants,

vs.
R obert  M a r t in e z , et al.,

Appellees.

On Appeal from the United States District Court 
for the Northern District of California

APPELLANTS’ REPLY BRIEF

This reply brief is submitted in order to correct 
certain misapprehensions apparent in appellees’ brief.

ARGUM ENT

I
FEDERAL ABSTENTION IS REQUIRED

The appellee at once asserts that the abstention 
argument was not presented to the district court but



2

that, even if  it was, it was done in a “ short and half­
hearted”  manner (Appellees’ Br. at 15, n. 8).

This argument ignores the opinion of the three- 
judge court at 354 F.Supp. 1092, 1094-1095 (N.D. 
Cal. 1973) which considers the abstention argument 
at some length and rejects it and the dismissal by the 
district court o f Count I I  o f the original complaint 
because it had been rendered moot by the California 
Supreme Court decision in In re Jordan, 7 Cal.3d 930, 
103 Cal.Rptr. 849 (1972), which interpreted California 
Penal Code section 2600.

Appellee then argues that California Penal Code 
section 2600 is not fairly subject to a construction 
which would modify or avoid the constitutional ques­
tion. This section in pertinent part reads:

“ Pursuant to the provisions of this section, 
prison authorities shall have the authority to 
exclude obscene publications or writings, and mail 
containing information concerning where, how, or 
from whom such matter may be obtained; and 
any matter of a character tending to incite 
murder, arson, riot, violent racism, or any other 
form of violence; and any matter concerning 
gambling or a lottery. Nothing in this section 
shall be construed as limiting the right o f prison 
authorities (i) to open and inspect any and all 
packages received by an inmate and (ii) to 
establish reasonable restrictions as to the number 
of newspapers, magazines, and books that the 
inmate may have in his cell or elsewhere in the 
prison at one time.” (Emphasis added.)

W e submit that a California court could indeed 
fairly interpret this statute so as to give the cor­



3

rectional authorities power to censor mail only to 
exclude “ obscene publications or writings” or material 
“ tending to incite murder, arson, riot, violent racism, 
or any other form of violence” and “ gambling or a 
lottery.” I f  so, this would render the present argu­
ment concerning Director’s Rule D 1201 forbidding 
“magnifying grievances” and “ unduly complaining” 
totally moot because that regulation as applied to mail 
would be statutorily unauthorized.

Appellee further complains that there is no com­
parable state remedy because the great writ of habeas 
corpus is used to attack prison conditions in Cali­
fornia. See In re Harrell, 2 Cal.3d 675, 87 Cal.Rptr. 
504 (1970), and In re Jordan, 7 Cal.3d 930, 103 Cal. 
Rptr. 849 (1972). This seems to be contradictory to 
appellees’ position at page 18 where, by their own 
admission, they advised the district court to abstain 
presumably because there was a comparable state 
remedy. Moreover, the remedy of habeas corpus, 
combined with that o f mandate, has a far wider 
application in California than appellees are apparently 
aware. See Reaves v. Superior Court, 22 Cal.App.3d 
587, 99 Cal.Rptr. 156 (1971).

Finally, appellees argue it is too late to order 
abstention; in effect the harm has been done and 
without complaint from appellants. This is not so. 
Appellants did apply unsuccessfully for a stay from 
all levels of the federal courts, but the friction con­
tinues as long as the federal district court maintains 
close and direct supervision o f the state correctional 
system.



4

THE MAIL REGULATIONS ARE NOT OF 
FEDERAL CONSTITUTIONAL DIMENSION

The basic difference between appellants and ap­
pellees is in their respective approaches to the inmate’s 
ability to send social mail. The district court held 
that a restriction on the ability to send social mail 
must be justified by either a “ compelling interest”  or 
a “ reasonable and necessary” state interest. Absent 
such justification, any restriction on social mail must 
fail and the proponents of the regulation have the 
burden of sustaining its validity.1

The appellants urge this Court to hold that there 
is no federal constitutional right in state prison in­
mates to send social mail. I f  this is so, there should 
be no burden on the states to prove justification of 
their regulations controlling such social mail to fed­
eral courts. I f  there is support for the concept of 
restriction in any rational system, that is sufficient.2

irThe district court’s “ Order Re Proposed New Regulations”, 
filed on May 30, 1973, noted that:

“ The Court believes that in light of the present text of 
Rule 2401, to wit, ‘the sending and receiving of mail is a 
privilege, not a right . . . ’ defendants should adopt a state­
ment summarizing the Court’s holding in this case in lieu of 
Rule 2401. The Court suggests the following:

‘Sending and receiving letters is not to be interfered 
with except that a specific letter may be disapproved if 
its contents are in violation of the following rules.’ ” (App. 
at p. 160)

2 It may well be that there is great debate on the rehabilita- 
tional propriety of the censorship of inmate social mail but this is 
irrelevant to any federal constitutional question. Accepting as 
true appellees’ statement, “ . . . it is as likely that mail censorship 
impedes rehabilitation as that it furthers it . . . .” Appellees’ 
Brief p. 42, it follows that there is no federal constitutional ques­
tion at issue.

II



5

Of course, concepts o f equal protection, cruel and 
unusual punishment, free exercise o f religion, and 
other specific provisions o f the constitution, will all 
continue to protect the inmate but these do not 
empower the federal court to declare the limits and 
purposes of censorship of social mail.3 The right to 
send social mail is a “ free man’s” right and is lost 
upon a valid felony conviction and sentence o f im­
prisonment. California provides confidential and un­
restricted access to courts, legislators, executive 
officials and to attorneys. Social mail is a matter of 
prison administration, not federal constitutional right. 
Frye v. Henderson, 474 F.2d 1263 (5th Cir. 1973).

The appellees claim that new regulations concern­
ing paraprofessional and law school students were 
voluntarily submitted. (Appellees’ Br. at 45.) In this 
they are mistaken. These actions were taken under 
orders from the district court and, as has been shown 
above, stays were sought, albeit unsuccessfully, at all 
available levels of the federal court system.

The original opinion of the district court delineated 
the class o f persons entitled to confidential interviews 
with inmates as “ bona fide law students under the

3Comparc United States v. Wilson, 447 F.2d 1, 8 (9th Cir. 
1973) (72-3145), coming to diametrically opposed conclusions 
regarding the “ lawful possession” of inmate mail.

I ll
THE PARAPROFESSIONAL AND 
LAW STUDENT REGULATIONS



6

supervision o f attorneys or full time lay employees of 
attorneys,” 354 F.Supp. at 1099. After further hear­
ings and objection, this was amended t o :

“ (3) Law students certified under the State Bar 
Rules for Practical Training of Law Students 
and sponsored by the attorney of record or
(4) . . .  persons regularly employed by the
attorney of record to do legal or quasi-legal re­
search on a full-time basis.” (App. at p. 166).

In the final order after yet further argument, this 
became:

“ (3) Law students certified under the State Bar 
Rules for Practical Training of Law Students 
and sponsored by the Attorney of Record, or
(4) legal paraprofessionals certified by the 
State Bar or other equivalent body and sponsored 
by the attorney of record.” (Supp. to App. pp. 
198-199).

The appellants strongly urge that the broad lan­
guage contained in the published opinion be disap­
proved. It is the opinion which has precedental value. 
It is the opinion’s language which will be quoted and 
relied upon.

It is submitted that this Court is the proper body 
to establish minimum constitutional standards of ac­
cess to the Courts. It may then require its lower courts 
to examine whether these minimums have been met 
in particular cases but once established that they have, 
and that the state under federal scrutiny is in com­
pliance, we respectfully submit that the federal in­
quiry should end.



7

Whether paraprofessionals eventually will contri­
bute materially to the legal representation of all per­
sons including the indigent and inmates is yet an 
open question. W e urge that it is premature for any 
federal court to hold that the federal constitution re­
quires that this as yet undelineated class be given 
confidential access to state prison inmates.

IV
THE PROCEDURAL DUE PROCESS REQUIREMENTS

There appears to be much confusion among ap­
pellants (App. at 6) regarding the appellate pro­
cedures available to inmates. As the appellees 
properly comment, under the mandate o f the federal 
courts, inmate discipline procedures have been the 
subject of extensive litigation. See Chitchette v. Pro- 
cunier, 328 F.Supp. 767 (N.D. Cal. 1971), and sub­
sequent proceedings in the Ninth Circuit Court of 
Appeals. Different procedures are provided for  in the 
case o f other grievances including those involving 
social mail. These were and are contained in Director’s 
Rule D P  1003 (Supp. to App. at 198). At that, time, 
this rule provided:

“ R ig h t  to  A d m in is t r a t iv e  R e v ie w  of G r ie v a n c e s . 
Each inmate has the right to appeal decisions or 
conditions affecting his or her welfare. Each 
institution head must provide a system whereby 
an inmate may request and receive administrative 
review of any problem or complaint. Such review 
will involve upper level staff and will insure that 
the complaint receives timely, courteous and con-