Arney v. Director, Kansas State Penitentiary

• Decision Date: 21 October 1983
• Docket Number: No. 55464,55464
• Citation: 671 P.2d 559,234 Kan. 257
• Parties: Joe ARNEY and Ferrine, Inc., Appellees, v. DIRECTOR, KANSAS STATE PENITENTIARY, Appellant.
• Court: Kansas Supreme Court

Page 559

671 P.2d 559

234 Kan. 257

Joe ARNEY and Ferrine, Inc., Appellees, v. DIRECTOR, KANSAS STATE PENITENTIARY, Appellant.

No. 55464.

Supreme Court of Kansas.

Oct. 21, 1983.

Syllabus by the Court

1. K.S.A. 60-801 defines mandamus as a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.

2. It has uniformly been held that the remedy of mandamus is available only for the purpose of compelling the performance of a clearly defined duty; that its purpose is to require one to whom the writ or order is issued to perform some act which the law specifically enjoins as a duty resulting from an office, trust, or station; that mandamus may not be invoked to control discretion and neither does it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to the order which he seeks. (Following Lauber v. Firemen's Relief Assn. of Salina, 195 Kan. 126, 402 P.2d 817 [1965].)

3. The only acts of public functionaries which the courts ever attempt to control by either injunction or mandamus are such acts only as are in their nature strictly ministerial; and a ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed. (Following Martin, Governor v. Ingham, 38 Kan. 641, 17 P. 162 [1888].)

4. The right of an inmate of a correctional institution to access to the news media is only a qualified right and gives rise to no affirmative duty on the part of prison officials other than to regulate that right uniformly, consistent with other governmental interests relating to prison administration.

5. The news media have no special right of access to correctional institutions different from or greater than that accorded the public generally.

6. Where there are alternative channels of communication open to prison inmates, a restriction on one manner of communication is constitutionally permissible as long as the restriction operates in neutral fashion without regard to the content of the expression.

Daniel L. Doyle, Sp. Asst. Atty. Gen., argued the cause, and Charles E. Simmons, Chief Legal Counsel, Dept. of Corrections, Topeka, was with him on the brief for appellant.

Thomas M. Dawson, Leavenworth, argued the cause and was on the brief for appellees.

HOLMES, Justice:

This is an appeal by the defendant, the Director of the state penitentiary at Lansing, from an order of mandamus issued by the district court. Appellee-plaintiff, Joe Arney, is an inmate of the penitentiary and appellee-plaintiff, Ferrine, Inc. (Ferrine), is a corporation whose business includes the production of television programs. The television show "Lie Detector' was one of its productions. Appellees sought an order in mandamus directing the defendant to allow Ferrine to administer a polygraph examination to Arney and have the examination videotaped for presentation on the program. The district court granted the order and the Director has appealed. We reverse.

Ferrine was the producer of "Lie Detector," a national television show hosted by a well-known attorney who first presents the background of guests who claim their reputation, credibility, or responsibility for an event has been wrongfully adjudged by others. These guests are then administered a polygraph examination by an expert technician for the purpose of validating the guests' stories, with both the test and the results being shown on television. The results may or may not be favorable to the guest. Plaintiff Arney, who has consistently maintained his innocence for the murder and other crimes of which he was convicted and imprisoned almost ten years ago (State v. Arney, 218 Kan. 369, 544 P.2d 334 [1975], saw in this show an opportunity to get a free polygraph examination and to get his story before the public. He contacted the producers about an appearance. Ferrine was interested in his story.

On February 21, 1983, a representative of Ferrine contacted Mr. Troy Baker, administrative assistant to the Director of the penitentiary, about the possibility of videotaping the examination of inmate Arney. Mr. Baker indicated that he personally saw no problem with the visit as proposed, but that final approval could only be obtained from the Director, who was out of town at the time. Ferrine decided to go ahead with the story. The next day Mr. Baker contacted Ferrine representatives suggesting they send a letter of format and request to enter the penitentiary. The letter was sent the same day. Six days later, on February 28, 1983, a Ferrine representative again called Mr. Baker, who informed him that a Department of Corrections meeting was scheduled for March 1, at which Ferrine's request would be considered. On March 2nd the Director told Ferrine he had forwarded the request to the Secretary of Corrections, and he expected a decision the next day. On March 4, 1983, the Director denied permission for Ferrine to enter the prison. By this time, in reliance on the earlier favorable representations, the show's producer had invested approximately $30,000 in preparation for the interview and filming.

Appellees filed a petition in the District Court of Leavenworth County on March 5th, seeking an order directing prison officials to allow the visit as planned. A hearing on the petition was set for Monday, March 7th. At the outset of the hearing on March 7th, the Director argued that the nature of the petition was a motion for habeas corpus dealing with the conditions of Arney's confinement as an inmate. On this ground the Director moved to dismiss the case for plaintiff's failure to exhaust administrative remedies. Plaintiffs' counsel responded that the petition was strictly in the form of mandamus and the court took the motion for dismissal under advisement and proceeded with the hearing. At the conclusion of the testimony the court denied the defendant's motion, agreeing that the nature of the petition was mandamus. We agree with that determination of the trial court.

The court, in its decision granting mandamus, identified a number of competing interests at stake in the case, primarily the inmate's First Amendment rights of speech and expression and his right to counsel and assistance in pursuing post-conviction remedies as opposed to the State's interest in the unhampered ability to run its prisons and maintain security. The court also gave consideration to the fact that Ferrine had already expended thirty thousand dollars. The court found the critical element to be the absence of a written policy by the prison authorities regarding access between inmates and the news media, as a result of which decisions could only be made on a case-by-case basis by the director. The court perceived these decisions as unavoidably arbitrary due to the lack of a written policy, and thus subject to review by the court. In its ensuing review, the court employed a balancing test, weighing the harm to the State if the order were to issue against the harm to inmate Arney's rights if relief were to be denied. On balance the court judged the inmate's interests to outweigh those of the prison administration. The court granted appellees' request, ordering the Director to permit Ferrine access to the prison by 3:30 p.m. that day. The district court denied appellant's motion to stay the proceedings pending appeal. Defendant immediately filed a notice of appeal and a motion to stay the judgment of the district court with the Kansas Court of Appeals. The stay was granted prior to the 3:30 p.m. deadline. The appeal has been transferred to this court pursuant to K.S.A. 20-3018(c).

At the outset appellees contend that the application of the remedy of mandamus is not subject to attack asserting that the Director failed to object at the trial level. The contention lacks merit. The petition of the plaintiffs did not specifically designate their legal theory and the Director attempted to secure a dismissal on the grounds the petition was in the nature of habeas corpus and Arney had not exhausted his administrative remedies. The court held, and we agree, that the petition asserted a cause of action in mandamus and granted the order of mandamus. The issue of whether that order was correct is properly before this court on appeal.

Before turning to the merits of the appeal, certain basic principles of the use of mandamus will be reviewed. K.S.A. 60-801 defines mandamus as

"[A] proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law."

It is well established that mandamus will not lie for the performance of an act involving discretion on the part of a public official. Topeka Bldg. and Construction Trades Council v. Leahy, 187 Kan. 112, 353 P.2d 641 (1960). In Lauber v. Firemen's Relief Assn. of Salina, 195 Kan. 126, 128-129, 402 P.2d 817 (1965), we said:

"It has uniformly been held that the remedy of mandamus is available only for the purpose of compelling the performance of a clearly defined duty; that its purpose is to require one to whom the writ or order is issued to perform some act which the law specifically enjoins as a duty resulting from an office, trust, or station; that mandamus may not be invoked to control discretion and neither does it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to the order...