Jordan, In re

• Decision Date: 15 September 1972
• Docket Number: Cr. 15734,15755
• Citation: 103 Cal.Rptr. 849,7 Cal.3d 930,500 P.2d 873
• Court: California Supreme Court
• Parties: , 500 P.2d 873 In re Robert Charles JORDAN, Jr., on Habeas Corpus. In re Eugene GRADY on Habeas Corpus. In Bank

Page 849

103 Cal.Rptr. 849

7 Cal.3d 930, 500 P.2d 873

In re Robert Charles JORDAN, Jr., on Habeas Corpus.

In re Eugene GRADY on Habeas Corpus.

Cr. 15734, 15755.

Supreme Court of California,

In Bank.

Sept. 15, 1972.

Rehearing Denied Oct. 25, 1972.

Alice Daniel, William Bennett Turner and Oscar Williams, San Francisco, for petitioner in No. 15734.

Dennis R. Powell, Maurice R. Jourdane, David H. Kirkpatrick, Richard A. Gonzales and Neil M. Levy, Salinas, for petitioner in No. 15755.

Paul N. Halvonik, Charles C. Marson, San Francisco, Hillel Chodos, Beverly Hills, A. L. Wirin, Fred Okrand, Laurence R. Sperber, Los Angeles, Ephraim Margolin, Roland Brandel, Robert H. Mnookin and John J. Bartko, San Francisco, amici curiae on behalf of petitioner in No. 15734.

Evelle J. Younger, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Nelson P. Kempsky, Edward P. O'Brien and Charles R. B. Kirk, Deputy Attys. Gen., for respondent.

PETERS, Justice.

Petitioners Robert Charles Jordan, Jr., an inmate at California Men's Colony at San Luis Obispo ¹ convicted of violating Penal Code sections 207 (kidnapping), and 286 (sodomy), and Eugene Grady, an inmate at San Quentin Prison convicted of violating Penal Code section 470 (forgery), seek habeas corpus to challenge two Department of Corrections rules, Director's Rules 2404 and 2406, forbidding confidential correspondence by an inmate with his attorney. (Neither petitioner challenges the validity of his conviction.) Both petitions raise the same issues.

It is a well established rule that habeas corpus may be sought by one lawfully in custody for the purpose of vindicating rights to which he is entitled in confinement. (In re Harrell, 2 Cal.3d 675, 682, 87 Cal.Rptr. 504, 470 P.2d 640; In re Allison, 66 Cal.2d 282, 285, 57 Cal.Rptr. 593, 425 P.2d 193; In re Riddle, 57 Cal.2d 848, 851, 22 Cal.Rptr. 472, 372 P.2d 304.)

Director's Rules 2404 and 2406 (hereinafter sometimes referred to as D2404 and D2406) were amended in April 1971 to permit prison authorities to examine the contents of letters to members of the State Bar. Those rules presently provide as follows:

'D2404. CONFIDENTIAL LETTERS. Inmates may address a sealed letter to the Governor of California, the Secretary of the Human Relations Agency, the Director of Corrections, the Deputy Director of Corrections, the administrative head of the State or Federal agency or board responsible for their custody or release, or to a judge. Such communications will not be censored. Inmates shall place their name and number on the outside of the envelope or the letter will be opened and returned.

'D2406. CENSORING. The institutional head may provide for the censoring of inmate correspondence and the inspection of all inmate packages as deemed necessary.

'Correspondence to a court shall not be prevented from leaving the institution for any reason. Correspondence to or from a member of the State Bar or holder of public office or received from those officials listed in D2404 may be opened by a designated employee only for the purpose of ascertaining whether the correspondence is from the designated official and for searching for contraband. The subject matter of such mail except that which may be excluded pursuant to Subdivision 4 of Penal Code Section 2600 shall be kept in strict confidence by the inspecting official.'

Director's Rule 1205 (hereinafter referred to as D1205) defines contraband as follows:

'a. Anything not issued to you, sold to you through the canteen, permitted by the rules, or specifically authorized.

'b. Any property of another, except legal papers attached to a note from the owner, stating that he has lent them;

'c. Anything which is being misused;

'd. Any writings or voice recordings expressing inflammatory political, racial, religious or other views or beliefs when not in the immediate possession of the originator, or when the originator's possession is used to subvert prison discipline by display or circulation.

'e. Any writings or voice recordings evidencing an intent on the part of the possessor to engage in, join with others in engaging in, or encourage others to engage in, any form of violent conduct within the institution.

'f. Any writings or voice recordings constituting escape plans or plans for the production or acquisition of explosives or arms, possession of which is forbidden by law to inmates of institutions under the control of the Department of Corrections. Such material as may be contained in books, magazines, or newspapers which have been previously approved for receipt by inmates is excepted. Contraband will be confiscated. Possession of contraband is grounds for disciplinary action. A disciplinary committee may turn any contraband over to the Adult Authority, regardless of the outcome of any disciplinary proceedings involving that contraband.

'Any writings or voice recordings not defined as contraband under this rule, but which, if circulated among other inmates, would in the judgment of the warden or superintendent tend to subvert prison order or discipline, may be placed in the inmate's property, to which he shall have access under supervision.'

We hold that Director's Rules 2404 and 2406 are invalid because they deprive petitioners of the right guaranteed by section 2600, subdivision (2) of the California Penal Code, and because they abridge the statutory right to refuse to disclose the contents of a confidential communication between a client and his attorney pursuant to Evidence Code sections 952 and 954.

The traditional response of the courts to a review of prison regulations is that those rules are best left in control of the prison administration and departments of correction. This reluctance to review complaints involving prison rules and discipline is phrased in terms of the 'hands-off' doctrine, a form of judicial self-restraint which is based upon the premise that courts should decline jurisdiction over prison matters in deference to administrative expertise, as well as the assumption that inmates do not possess the constitutional rights enjoyed by free citizens. (See Ruffin v. Commonwealth (1871) 62 (21 Grat.) Va. 790, 796.)

Neither of these premises justify continued abstention from subjecting those rules regulating the content of attorney-client correspondence to examination by the courts in light of legislative policy. We recognize that prison administrators are in the best position to control inmates but this control cannot violate statutory or constitutional rights.

Prior to 1968 there were no statutes which spoke specifically to the right of prison authorities to open and inspect correspondence of any kind to or from prison inmates. Instead, reasoning from the 'civil death' statutes (Pen.Code, § 2600 et seq.), it was concluded that prison inmates had no privacy of any nature, and that all mail to and from inmates was subject to inspection. Mail to and from attorneys was considered to be subject to inspection in the same manner as all other mail. The only restriction placed upon prison authorities was that the right of inspection should not be used so as to unreasonably delay such communications. (In re Ferguson, 55 Cal.2d 663, 677, 12 Cal.Rptr. 753, 361 P.2d 417.)

In 1968 the Legislature acted to replace the concept of civil death 'with statutory provisions seeking to insure that the civil rights of those convicted of crime be limited only in accordance with legitimate penal objectives.' (In re Harrell, Supra, 2 Cal.3d 675, 702, 87 Cal.Rptr. 504, 522, 470 P.2d 670, 688.) The 1968 amendment according to Harrell, (constitutes a prison 'bill of rights' which sets forth four basic guarantees which are retained by persons sentenced to imprisonment,' including the right to correspond confidentially with attorneys and public officials. (2 Cal.3d at p. 702, 87 Cal.Rptr. at p. 522, 470 P.2d at p. 688.)

Penal Code section 2600 provides in pertinent part as follows: 'A sentence of imprisonment in a state prison for any term suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority, or power during such imprisonment. . . .

'This section shall be construed so as not to deprive such person of the following civil rights, in accordance with the laws of this state:

'(2) To correspond, confidentially, with any member of the State Bar, or holder of public office, provided that the prison authorities may open and inspect such mail to search for contraband.'

Prior to the 1968 amendments to section 2600 our court in In re Ferguson, Supra, 55 Cal.2d 663, 12 Cal.Rptr. 753, 361 P.2d 417, ruled that all incoming and outgoing letters to prisoners, including letters to and from attorneys, could be read by prison authorities. In effect, this ruling held that inmates had no right to correspond confidentially with anyone. The 1968 amendments to section 2600 evince a legislative reaction to older judicial concepts of civil death exemplified by Ferguson. Although the authors of section 2600, subdivision (2), opted for absolute confidentiality of attorney mail, a compromise was reached to ensure the exclusion of contraband from such correspondence and provision was made for inspection for contraband.

We recognize that section 2600, subdivision (2) is seemingly contradictory in that it gives confidentiality to attorney-client correspondence but then continues by giving prison authorities the right to open and inspect such correspondence to search for contraband. In this respect the Department of Corrections by establishing Director's Rules 2404 and 2406 was obviously attempting in good faith to reconcile the seeming contradiction.

Nevertheless, if the provision for inspection is interpreted to permit the reading of attorney correspondence, then the effect of section 2600, subdivision (2), is rendered nugatory. There is nothing confidential about a letter which is read by a third party. The proviso to section 2600,...