Cacicio v. Secretary of Public Safety

• Decision Date: 29 May 1996
• Citation: 665 N.E.2d 85,422 Mass. 764
• Parties: David CACICIO & others 1 v. SECRETARY OF PUBLIC SAFETY & others. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 85

665 N.E.2d 85

422 Mass. 764

David CACICIO & others ¹ v. SECRETARY OF PUBLIC SAFETY & others. ²

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 3, 1996.

Decided May 29, 1996.

Robert J. Munnelly, Jr., & Karen J. Laufer, Assistant Attorneys General, on briefs, for Secretary of Public Safety.

Thomas R. Teehan, Boston, on briefs, for New England Telephone and Telegraph Company.

David Cacicio & others, on briefs, pro se.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

This case concerns facial challenges to new regulations (regulations) of the Department of Correction (department) which permit the monitoring and recording of inmates' telephone calls. The plaintiffs, six inmates at the Massachusetts Correctional Institution, Norfolk, filed this pro se action in the Superior Court, seeking declaratory and injunctive relief against the Secretary of Public Safety and correction department officials (collectively, government defendants), as well as against New England Telephone and Telegraph Company, and its chief executive officer (NET). The plaintiffs brought their action on behalf of themselves and a putative class of similarly situated Massachusetts inmates. In their amended complaint, the plaintiffs challenge the facial validity of the regulations, alleging that they violate several of their Federal and State constitutional rights, as well as Federal and State statutory and regulatory provisions. ³ A judge in the Superior Court ordered consolidation of all actions challenging the regulations. ⁴ The judge also denied the plaintiffs' motion for class certification.

The plaintiffs subsequently moved for an evidentiary hearing to "substantiate there is a lesser restrictive means available and currently in place to achieve the same end results sought by the various defendants." The government defendants and NET each moved to dismiss, see Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), or, in the alternative, for summary judgment, see Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974). The plaintiffs in turn filed a motion seeking a thirty-day extension to respond to the defendants' dispositive motions in the event that the court did not grant the plaintiffs' pending motion for an evidentiary hearing.

A second judge in the Superior Court denied the plaintiffs' motions for an evidentiary hearing and for an extension of time and entered an order dismissing the plaintiffs' amended complaint. ⁵ Judgment entered against the plaintiffs declaring that "[t]he defts show [sic ] this case concerns a matter confided to the discretion of the corrections officials." The plaintiffs appealed, and we transferred the case to this court on our own motion. We conclude that the defendants were entitled to summary judgment, and therefore affirm the judgment.

The undisputed facts disclose the following. On April 8, 1994, the department promulgated new regulations at 103 Code Mass.Regs. §§ 482.01-482.14, governing inmate access to, and use of, telephones in the Massachusetts correctional system. Pursuant to these regulations, the department entered into a contract with NET for an automated operator telephone system that has the capability to record all or some inmate calls.

The regulations provide that all inmate calls, except those made to attorneys, are subject to monitoring and recording by department officials. All inmates who use a telephone first must receive a personal identification number (PIN). The regulations provide that inmates who accept a PIN and use the telephone have consented to the monitoring and recording of telephone conversations with other than an attorney.

The regulations limit inmates to a total of fifteen telephone numbers to which they may place calls. Five of these numbers are reserved for attorneys. ⁶ All fifteen numbers must be approved by the correctional institution and then programmed to the inmate's PIN. ⁷ Inmates also are authorized to telephone Massachusetts Correctional Legal Services, Harvard Prisoner Legal Assistance Project, and Northeastern University Legal Assistance.

Inmates are limited to one-way collect calls. An automated operator system informs call recipients that the call is originating from an inmate at a Massachusetts correctional institution, that calls to persons other than attorneys are recorded, and that any attempt to access a three-party line or conference call will cause the system to disconnect the call immediately. The system recognizes a "positive call acceptance." Calls to 411, 800, 900, 550, 976, and other multiple long distance carriers are prohibited. Superintendents at each institution are to establish policies on telephone use issues, including times when telephones are available to inmates and limits on durations of calls. Besides using telephones, inmates, with some limitations, also are permitted to communicate with persons outside of correctional facilities through the mail. See 103 Code Mass.Regs. § 481.00 (1996). They also are permitted to meet privately with attorneys and other visitors during regular visitation hours. See 103 Code Mass.Regs. § 483.00 (1993).

Most Massachusetts correctional institutions maintain collections of legal materials, allowing access to all inmates within the institution. 103 Code Mass.Regs. § 478.11(2), (3) (1993). Inmates in institutions without law libraries may request transportation to an institution with a law library to conduct legal research. 103 Code Mass.Regs. § 478.11(3). Where appropriate, superintendents may provide access to legal assistance in lieu of law library access. Id.

The department promulgated the telephone regulations to prevent inmates from using the telephone system for illegal activities such as planning escapes, organizing drug trafficking, orchestration of criminal activities, solicitations to murder, and fraudulent use of third-party calls or telephone credit cards. The regulations also were designed to prevent inmates from using telephones to harass members of the media, public officials, and victims, especially those who have protective orders granted under G.L. c. 209A (1994 ed.) against particular inmates. ⁸ On appeal, the plaintiffs argue that the regulations violate their right to be free from unreasonable searches and seizures as protected by art. 14 of the Declaration of Rights of the Massachusetts Constitution; their right of access to the courts and of effective assistance of counsel as protected by the First, Fourteenth, and Sixth Amendments to the United States Constitution; and their right to freedom of speech and expression as protected by art. 16 of the Declaration of Rights, as amended by art. 77 of the Amendments. ⁹

1. NET. NET was entitled to summary judgment. The only allegation in the amended complaint pertinent to NET asserted that NET had entered into a contract with one or more of the government defendants to supply telecommunications services "including, but not limited to software which will allow the other Defendants to implement 103 CMR 482." The constitutional provisions at issue call for, or create prohibitions on, government action. NET is not a government actor, and NET's provision of telephone services to correctional institutions does not convert it into a government actor. See Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 2771, 73 L.Ed.2d 418 (1982).

2. Government defendants. The standard of review governing a facial challenge to a regulation promulgated by a government agency is highly deferential. A regulation "has the force of law and must be accorded all the deference due a statute." Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 723, 448 N.E.2d 367, cert. denied, 464 U.S. 936, 104 S.Ct. 345, 78 L.Ed.2d 312 (1983). In reviewing a regulation, a court "[cannot] substitute [its] judgment as to the need for a regulation, or the propriety of the means chosen to implement the statutory goals, so long as the regulation is rationally related to those goals." American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468, 477, 446 N.E.2d 1061, cert. denied, 464 U.S. 850, 104 S.Ct. 160, 78 L.Ed.2d 147 (1983).

This deference is particularly pronounced in the context of regulations enacted by correction officials that concern institutional security issues. See Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979) (prison officials "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline"); Kenney v. Commissioner of Correction, 393 Mass. 28, 35, 468 N.E.2d 616 (1984) (recognizing that operation of a prison is an extraordinarily difficult task and prison officials, therefore, must have broad discretion in the administration of prison affairs).

In order to allow prison officials, rather than the courts, to make decisions governing prison operations, the United States Supreme Court has indicated that a regulation which impinges on an inmate's constitutional rights is valid "if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). ¹⁰ Four considerations were identified in the Turner decision as relevant to that inquiry: (1) Is there a valid, rational connection between the regulation and the governmental interest put forward to justify it, and is the governmental interest legitimate and neutral; (2) do alternative means of exercising the challenged right remain open to inmates; (3) will accommodating the challenged right have a significant "ripple effect" on guards, other inmates, and the allocation of prison resources in general; and (4) does an alternative to the regulation exist which would fully accommodate the inmates' rights at de minimis cost to valid penological interests? Turner v. Safley, supra at 89-91, 107 S.Ct. at 2261-2263. The...