Cooke v. Tramburg, s. A--30

• Decision Date: 01 September 1963
• Docket Number: Nos. A--30,s. A--30
• Parties: , 12 A.L.R.3d 1269 Everette E. X. COOKE, Plaintiff-Appellant, v. John W. TRAMBURG, Commissioner of Institutions and Agencies, Defendant-Respondent. ,
• Court: New Jersey Supreme Court

Page 514

43 N.J. 514

205 A.2d 889, 12 A.L.R.3d 1269

Everette E. X. COOKE, Plaintiff-Appellant, v. John W. TRAMBURG, Commissioner of Institutions and Agencies Defendant-Respondent.

Nos. A--30, sept. Term, 1963, A--15, Sept. Term, 1964 Supreme Court of New Jersey.

Argued Nov. 18, 1963.

Reargued Oct. 19, 1964.

Decided Dec. 14, 1964.

Louis B. Zavin, Newark, for plaintiff-appellant.

Leonard Etz, Trenton, Atty. for American Civil Liberties Union, participated, as amicus curiae, at hearings before trial court on remand and withdrew before second argument.

Eugene T. Urbaniak, Deputy Atty. Gen., for defendant-respondent (Arthur J. Sills, Atty. Gen., attorney for defendant-respondent).

The opinion of the court was delivered by

SCHETTINO, J.

Plaintiff, a member of the Black Muslim movement, was confined at the New Jersey State Prison serving a sentence for larceny. ¹ He requested the Board of Managers of the New Jersey State Prison to grant to the Black Muslims confined therein the right to assemble in a chapel or other appropriate place of worship and furthermore to permit a Minister of the Black Muslim movement to preach to the congregation assembled there. The Board of Managers denied plaintiff's request on the ground that if permission were granted, the practice would be inimical to the maintenance of prison welfare.

Defendant points out that in the exercise of the Board's discretion Black Muslims are allowed the following liberties which are in the nature of the exercise of religious beliefs. Black Muslims are permitted to receive religious tracts in prison, they may purchase their Qu'ran, and may read it in their cells, they are permitted to gather together in the exercise yard up to six in number, and discuss the Qu'ran, Muslimism and Islam if done orderly and in quiet voice. Moreover, they can have a Black Muslim minister placed on their visiting list and the minister may visit each one and give him private counselling without anyone's listening in; and also they have writing privileges to their ministers.

Plaintiff appealed the Board's decision to the Appellate Division pursuant to R.R. 4:88--8 ². Before argument, we certified the cause on our own motion. After oral argument before us we ordered the matter referred to the Superior Court for the taking of testimony of the basis of the Board's rule or regulation.

The Board of Managers made no determination concerning the religious status of the Black Muslim movement. We need not decide the question as even were we to proceed under the assumption that it is a religion, we reach the same conclusion. ³

Both the Constitution of the United States and the Constitution of the State of New Jersey provide for freedom of religious worship. ⁴ But we note that in Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1939), the Supreme Court distinguished between the two concepts embodied in the First Amendment, namely, the freedom to believe and the freedom to exercise one's belief. It pointed out that the first is absolute while the second is not and furthermore that the freedom to act is subject to regulation for the protection of society. See also Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879); Davis v. Beason 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890). The latter concept is clearly applicable to a penal institution. Banks v. Havener, 234 F.Supp. 27 (E.D.Va.1964).

These principles were followed in McBride v. McCorkle, 44 N.J.Super. 468, 130 A.2d 881 (App.Div.1957). There the court noted that while freedom to believe is absolute, freedom to exercise one's belief is not and must be considered in light of the general public welfare. With particular reference to a prison inmate the court held that although attendance at Mass on Sundays and Holy Days as prescribed by the Roman Catholic Church is the 'exercise' of religion, a prisoner who, in common with 30 other men in the segregation wing of the State Prison, was prevented from attending Mass on Sundays and Holy Days was not thereby subjected to cruel and unusual punishment or deprived of his constitutional right of free exercise of his religion.

In Reynolds, supra, the Supreme Court upheld a Mormon's conviction for bigamy against the defense of interference with religious freedom as guaranteed by the First Amendment. Chief Justice Waite there stated (98 U.s., at p. 166, 25 L.Ed., at p. 250): 'Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?'

In State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962), cert. denied 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962), we held that where parents who were Jehovah's Witnesses had refused to grant permission for necessary blood transfusions for their infant, the finding that the parents were guilty of neglect and the appointment of a guardian for the purpose of consenting to blood transfusions were not violative of either the Federal or State Constitutions. We pointed out that where the interests of society as a whole necessitate a course of action, they have been held paramount to certain personal freedoms including religious ones.

Although a convict, upon his admission to a prison, does not forfeit all his civil liberties, Sewell v. Pegelow, 291 F.2d 196 (4 Cir. 1961); Coffin v. Reichard, 143 F.2d 443, 155 A.L.R. 143 (6 Cir. 1944), cert. denied 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945), the discipline required to maintain the proper functioning of the prison community may curtial such liberties. 'Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retration justified by the considerations underlying our penal system.' Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356, 1369 (1948). See also McBride, supra; Sostre, supra; Brown v. McGinnis, 10 N.Y.2d 531, 225 N.Y.S.2d 497, 180 N.E.2d 791 (Ct.App.1962). Compare In re Ferguson, 55 Cal.2d 663, 12 Cal.Rptr. 753, 361 P.2d 417 (Sup.Ct.1961); cert. denied Ferguson v. Heinze, 368 U.S. 864, 82 S.Ct. 111, 7 L.Ed.2d 61 (1961).

That constitutionally required rights can be subjected to proper limitation is clear. The issue before us relates to whether the limitations here imposed fall within the proper exercise of administrative prerogatives. We emphasize the court's somewhat limited function in this field as pointed out by Judge Goldman in McBride, supra (at p. 477, 130 A.2d at 885):

'Courts are not required to supervise the administration of prison rules and regulations and prison disciplinary procedures. To do so would effectively disrupt prison administration and contravene public policy. * * * Such matters are left to the discretion of prison authorities so long as their conduct does not involve deprivation of the prisoner's constitutional rights and is not clearly capricious or arbitrary.' ⁵

Defendant pointed out that the administration of six New Jersey penal institutions, containing approximately 2800 men, includes the responsibility for the maintenance of the safety and welfare of the prison community, I.e., protection of community harmony from the actions of the few and protection of prisoners from each other. Defendant claims that the Black Muslims are attempting to shackle the performance of this responsibility. Dr. Henri Yaker, consulting psychologist to the New Jersey State Prison, stated:

'Nominally, the Black Muslims teach a doctrine of normative Islamic theology and doctrine. Their scripture is the Qu'ran laying forth all the tenets of Islam--the supremacy and unity of Allah, doctrines of sin, repentence, salvation and the absolute submission to the will of Allah, to be a Muslim, and to find inner peace and submission through the faith to 'surrender' (Islam), the doctrine of the appointed messenger (Madhi), and the prophetic place of Muhammed, the teacher. Over this normative doctrine Elijah Muhammed, with his lieutenants, has superimposed a new set of teachings, which gives the basic raison d'e tre of the movement, these teachings being summarized in Elijah Muhammed's catechism, The Supreme Wisdom.' ⁶

The basic tenet of the movement is the segregation of the races, including hatred of the Caucasian Race--both Christians and Jews. 'The truth of the white race and kind will make all black mankind hate them, regardless of their color--black, brown, yellow or red.' ⁷ The white race is referred to as the enemy or the devil and Black Muslim lessons preach:

'Why does Muhammed or any Muslim murder the devil? What is the duty of each Muslim in regard to four devils? What reward does a Muslim receive by bringing and presenting four devils at one time?

Answer: Because he is 100% Wicked and cannot keep and obey the laws of Islam. His ways and actions are like a snake of the grafted type. So Muhammed learned that he could not reform them, so they had to be murdered. All Muslims will murder the devil because they know he is a snake and if he be allowed to live he would sting someone else.

Each Muslim is required to bring 4 devils and by bringing and presenting 4 at one time his reward will be a button to wear on the lapel of his coat as a free transportation to the Holy City of Mecca to see brother Muhammed.' ⁸

Occurrences experienced by New Jersey prison authorities involving Black Muslim inmates have two basic patterns: one where Caucasians or other Negroes are driven to disrupt prison discipline, and the second where Black Muslims themselves cause upheavals. The first relates to situations where inmates have been stabbed, escaped, prevented from receiving full ration of food or caused other groups to threaten retaliation. At the Rahway Prison Farm, two white men attacked three Black...