Ault v. Holmes, s. 73-2049 and 73-2208
Decision Date | 15 November 1974 |
Docket Number | Nos. 73-2049 and 73-2208,s. 73-2049 and 73-2208 |
Citation | 506 F.2d 288 |
Parties | Donald E. AULT, Individually, and on behalf of all others similarly situated, Plaintiff-Appellee, v. Charles J. HOLMES, Individually and in his official capacity as Commissioner of the Department of Corrections of the Commonwealth of Kentucky, et al., Defendants-Appellants. John Brenton PRESTON, Plaintiff-Appellee, v. Henry E. COWAN, Warden Kentucky State Penitentiary, et al., Defendants-Appellants. |
Court | U.S. Court of Appeals — Sixth Circuit |
Ed W. Hancock, Atty. Gen. of Kentucky, Kenneth A. Howe, Jr., Bruce K. Davis, Legal Counsel, Bureau of Corrections, Dept. of Justice, Frankfort, Ky., for defendants-appellants in No. 73-2049.
Robert Plotkin, N.L.A.D.A., Washington, D.C., Robert E. Delahanty, Elizabeth M. Freedman, Louisville, Ky., Allen M. Ressler, Legal Aid and Defender Society, Kansas City, Mo., for plaintiff-appellee in No. 73-2049.
Ed W. Hancock, Atty. Gen. of Kentucky, Robert L. Chenoweth, Bruce K. Davis, Frankfort, Ky., for defendants-appellants in No. 73-2208.
Robert A. Sedler, Lexington, Ky., for plaintiff-appellee in No. 73-2208.
Jack Greenberg, Stanley A. Bass, New York City, for amici curiae.
Before EDWARDS, McCREE and LIVELY, Circuit Judges.
These two cases, which were consolidated for hearing, presented the same basic problems, namely, whether or not prisoners in Kentucky's penal system have a due process right to a hearing before they are transferred out of the state to continue service of their penal term in the penitentiary systems of other states, and if so, what sort of hearing is required.
The cases were heard before Judge Charles Allen in Louisville, who entered thoughtful opinions finding due process violations in defendants' denial of any hearing (absent an 'emergency' situation), 1 and spelling out what defendants had to do at the due process hearing he required.
At appellate hearing counsel for the Department of Corrections agreed that some form of due process hearing was required before such a transfer took place. Defendants' opposition to Judge Allen's order centered primarily upon his requirement of 'an impartial' board and his holding that the prisoner had a right to be represented by a lay advocate and that he had the right to call and examine witnesses.
Subsequent to appellate hearing of these cases (and, of course, subsequent to Judge Allen's decision), two developments have taken place which have required our consideration. First, the attention of this court was called to the well-considered opinion of Judge Goldberg for the Fifth Circuit, sitting enbanc, concerning somewhat similar cases involving prisoner complaints about disciplinary procedures. See Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1973). In all four of the cases there concerned the Fifth Circuit held it was deprived of jurisdiction by the threejudge court requirement of 28 U.S.C. 2281 (1970).
Since the Sands case had not been considered by the District Judge in our instant cases, nor briefed or argued before our panel, we required additional briefing concerning the jurisdiction of our court. Both briefs received distinguish the Sands case and our instant cases by pointing out that in our cases plaintiffs-appellees do not attack any state statute or any state regulation adopted by an administrative board or commission as required by 28 U.S.C. 2281 (1970). The brief for the State of Kentucky states in this regard:
On the facts in this case, we conclude that the District Judge had jurisdiction (as opposed to any three-judge court requirement) and that as a consequence, we do. 28 U.S.C. 2281 (1970) provides:
'An interlocutory or permanent injunction restraining the enforecement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the...
To continue reading
Request your trial-
Shifrin v. Wilson
...Preston v. Cowan, 369 F.Supp. 14 (W.D.Ky. 1973), aff'd in part, vacated in part, remanded in part (relevant portion aff'd) 506 F.2d 288 (6th Cir. 1974); Sostre v. Rockefeller, 312 F.Supp. 863 (S.D.N.Y.1970), aff'd in part, modified in part, reversed in part sub nom. en banc (relevant portio......
-
Davis v. Balson
...aff'd, 525 F.2d 965 (5th Cir. 1976); Preston v. Cowan, 369 F.Supp. 14 (W.D.Ky.1973), aff'd in relevant part sub nom., Ault v. Holmes, 506 F.2d 288 (6th Cir. 1974). Plaintiffs further contend that if incoming mail is to be opened and inspected for contraband, it must be opened in the patient......
-
Kendrick v. Bland
...imposed by enforcement of provisions of 1972 and 1973 Kentucky Department of Corrections' policies), as modified, Ault v. Holmes, 506 F.2d 288 (6th Cir.1974). Kentucky inmates thus have "an absolute right" to seal and send all outgoing mail without inspection "with the distinct understandin......
-
United States ex rel. Gereau v. Henderson
...where transfer complained of could have been punitive); Ault v. Holmes, W.D.Ky., 1973, 369 F.Supp. 288, aff'd and remanded, 6 Cir., 1974, 506 F.2d 288 (transfer of "known" agitator for security 12 Fano v. Meachum, 1 Cir., 1975, 520 F.2d 374, cert. granted, ___ U.S. ___, 96 S.Ct. 444, 46 L.E......