Bailey v. Loggins

• Decision Date: 10 December 1982
• Docket Number: S.F. 24076
• Citation: 32 Cal.3d 907,654 P.2d 758,187 Cal.Rptr. 575
• Parties: , 654 P.2d 758 Artie BAILEY et al., Plaintiffs and Respondents, v. Otis A. LOGGINS, as Superintendent, etc., et al., Defendants and Appellants.
• Court: California Supreme Court

Page 575

187 Cal.Rptr. 575

32 Cal.3d 907, 654 P.2d 758

Artie BAILEY et al., Plaintiffs and Respondents, v. Otis A. LOGGINS, as Superintendent, etc., et al., Defendants and Appellants.

S.F. 24076.

Supreme Court of California.

Dec. 10, 1982.

George Deukmejian, Atty. Gen., Robert H. Philibosian and Jack R. Winkler, Chief Asst. Attys. Gen., Edward P. O'Brien, Asst. Atty. Gen., Ronald E. Niver, W. Eric Collins and Richard G. Tullis, Deputy Attys. Gen., for defendants and appellants.

John H. Larson, County Counsel, Los Angeles, Richard K. Mason, Deputy County Counsel, and Ron Apperson, Los Angeles, as amici curiae for defendants and appellants.

Michael R. Snedeker and Smith, Snedeker & Comiskey, San Francisco, for plaintiffs and respondents.

William J. Taylor, Margaret C. Crosby, Alan L. Schlosser and Amitai Schwartz, San Francisco, as amici curiae for plaintiffs and respondents.

BROUSSARD, Justice.

Defendants appeal from a judgment mandating them, as officers of the Department of Corrections: (a) to permit publication of two articles in the Soledad prison newspaper, the Star News; (b) to formulate guidelines limiting administrative censorship of the Star News to matters which would reasonably be deemed a threat to institutional security or which described the making of a weapon or other dangerous device; and (c) to formulate regulations for expeditious review of controversies concerning inmate articles. Since defendants no longer object to publication of the articles in question, that portion of the controversy is moot. The principal questions before us concern the nature of the regulations and the adequacy of procedures for reviewing a decision barring publication of an article.

1. History of this litigation.

The Star News is an inmate newspaper written, edited and published at the state prison at Soledad. It is financed by the inmate welfare fund, not by the taxpayers. ^{1 1} The trial court's findings described the publication: "A representative copy of the Star News Admitted into Evidence by stipulation as Exhibit A contained an editorial page, prepared by an inmate editor, a credit section by the Department of Corrections, and a 'disclaimer' section indicating that the views expressed in the paper do not reflect those of the Administration or other parties but are solely the expressions of the individual author-writer 'and should not be construed in any other manner.' " The court found a representative copy of the Star News to contain articles promoting the interests of different groups as well as material critical of prison administration.

In September of 1976 Willie Brandt, an inmate at Soledad, submitted two articles for publication in the Star News. One related to a lecture given at Soledad by Professor Amundson of the Institute of Industrial Relations at the University of California; the other concerned a lecture by Ms. Lytle, deputy legal affairs secretary to the Governor. Petitioner Bailey, inmate editor of the Star News, and Mr. Estin, the civilian journalism instructor, approved the articles for publication.

The Star News then submitted the articles to Associate Superintendent Dobreff, designated as supervisor of the content of the newspaper. He rejected the articles, as did the acting superintendent and his staff. Pursuant to the grievance procedures of the institution, editor Bailey filed an appeal from that decision requesting both that the authorities grant permission to publish the articles and that the Department of Corrections establish guidelines to govern the control of content of the newspaper.

Reviewers at the first and second level rejected Bailey's appeal. Finally, on February 1, 1977, respondent Enomoto, as Director of Corrections, sent a letter to editor Bailey explaining his ruling on the appeal, granting the request for guidelines, and adopting regulations 413.08, 413.10 and 413.11 of the department's administrative manual to govern publication of the Star News. ² He then denied the request for publication of the articles, citing the portion of regulation 413.11 which states that prison newspapers shall not "be used to ... attack any law, rule or policy to which inmates or employees may object .... Grievances ... will be given consideration when called to attention through designated channels, and institutional publications shall not be used for that purpose." Apparently because the articles spoke favorably of collective organization and bargaining by the prisoners, the director concluded that they "constituted a subtle--or perhaps, not so subtle--attack upon administration" and thus violated regulation 413.11.

The guidelines adopted as department regulations provided generally that the newspaper should conform to good journalistic standards, be designed to appeal to all inmates, and avoid material offensive to racial, religious, or political groups. As noted in defendant Enomoto's letter, the guidelines prohibited the use of the newspaper to attack administration rules or policy, or to assert any grievance. They also banned the assumption of an editorial position on pending legislation, the attempt to elect or defeat any official, or an attack upon existing governmental policy.

On April 28, 1977, Bailey, as editor of the Star News, and the Prisoners Union, as a subscriber to that newspaper, brought the present mandamus action. During trial the Department of Corrections promulgated new and more complete regulations, published as regulations 720 through 726 of the department's administrative manual. The new provisions, in regulations 723 and 724, incorporated former regulations 413.08, 413.10, and 413.11 without change. ³ (Reference in this opinion to "regulations," unless otherwise identified, refers to those in effect at the time of trial.) After briefing and argument, the trial court concluded that the regulations in question were overbroad, and that regulations limiting the content of the newspaper were permissible only to protect institutional security. It then issued a peremptory writ mandating publication of the two articles and directing the enactment of regulations "which limit censorship of articles to publications of matters which if published would reasonably be deemed a threat to the security of the institution ... or which describes [sic] the making of any weapon, explosive, poison or destructive device." The trial court also found that the existing appeal procedure was inadequate, ⁴ and mandated enactment of regulations "ensuring expeditious review of censored articles for the prison newspaper."

Defendants appealed and secured a stay of the trial court's order. During the appeal, the Department of Corrections revoked the detailed guidelines of regulations 720 through 726, and adopted two regulations which simply provided generally for administrative control of prison publications. ⁵

After the Court of Appeal affirmed the judgment, we granted a petition for hearing. While the case was pending here, the Department of Corrections adopted additional new regulations, again numbered as regulations 720 through 726 of its administrative manual. The new regulations closely resemble the previous regulations, bearing the same numbers, in effect at the date of trial.

With the passage of time, the controversy concerning publication of Willie Brandt's articles has abated. Defendants no longer object to publication. The remaining issues raised by this case--the power of the department to reject an article submitted for publication and the process of appealing that decision--are still issues of current controversy. The order of the trial court addresses those issues and requires the department to enact new regulations. Thus although the specific dispute concerning the two articles has dissipated, the question of the validity of the trial court's order is not moot but ripe for judicial resolution.

2. Editorial control of the prison newspaper by the department.

Penal Code sections 2600 and 2601 govern the rights of inmates in California prisons. Section 2600, the pertinent section in this case, provides that "[a] person sentenced to imprisonment in a state prison may, during any such period of confinement, be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public." Thus by statute California prisoners retain all rights encompassed under the heading of the freedom of the press in the First Amendment to the United States Constitution and article I, section 2 of the California Constitution, except to the extent that such rights must be curtailed for institutional security and public safety.

Consequently, established principles of constitutional law apply in defining the rights of prisoners. Among those principles is the rule that the state, having opened a forum for the expression of ideas, may not prevent members of its public from using the forum because the state disapproves of their beliefs or the content of their expression. (Wirta v. Alameda-Contra Costa Transit Dist. (1967) 68 Cal.2d 51, 56, 434 P.2d 982; Cox v. Louisiana (1965) 379 U.S. 536, 557, 85 S.Ct. 453, 465, 13 L.Ed.2d 471.) Another is the doctrine that the state may not condition the exercise of a privilege, including the privilege of using state property, on the renunciation or nonexercise of constitutionally protected rights. (Danskin v. San Diego Unif. Sch. Dist. (1946) 28 Cal.2d 536, 545, 171 P.2d 885; Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 257-258, 172 Cal.Rptr. 866.)

The application of these principles to a prison newspaper depends upon the purpose served by that publication, the governing regulations, and the practice of the prison authorities in applying those regulations. It is clear, to begin with, that the prison need not establish any publication whatever. (The Luparar v. Stoneman (D.Vt.1974) 382...