Flowers v. Sullivan, 1

• Decision Date: 21 August 1989
• Docket Number: No. 2,No. 1,1,2
• Citation: 149 A.D.2d 287,545 N.Y.S.2d 289
• Parties: In the Matter of the Richard FLOWERS, et al., Appellants, v. James SULLIVAN, et al., Respondents. (Proceeding) In the Matter of the Richard FLOWERS, et al., Appellants, v. James SULLIVAN, et al., Respondents. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 289

545 N.Y.S.2d 289

149 A.D.2d 287

In the Matter of the Richard FLOWERS, et al., Appellants, v. James SULLIVAN, et al., Respondents. (Proceeding No. 1)

In the Matter of the Richard FLOWERS, et al., Appellants, v. James SULLIVAN, et al., Respondents. (Proceeding No. 2)

Supreme Court, Appellate Division Second Department.

Aug. 21, 1989.

Carol Kahn, White Plains, for appellants.

Robert Abrams, Atty. Gen., New York City (Charles C. Davis, Jr., and Jay B. Damashek, of counsel), for respondents.

Before LAWRENCE, J.P., and EIBER, SPATT and BALLETTA, JJ.

EIBER, Justice.

These appeals raise questions concerning the extent to which the First Amendment rights (see, U.S. Const., 1st Amend.) of incarcerated persons may be restricted. The petitioners, inmates at the Sing Sing Correctional Facility, seek to overturn regulations promulgated by the New York State Department of Correctional Services which restrict the use, acquisition or possession of certain electronic devices at State correctional facilities. The petitioners in both cases claim, inter alia, that the regulations unlawfully deprive them of their right to free access to the media. We cannot accept this contention. Instead, we hold that the challenged directives are reasonably related to legitimate penological concerns and that the Supreme Court, Westchester County, in each proceeding, properly rejected the claims advanced by the petitioners.

I. PROCEEDING NUMBER 1

By pro se petition dated October 14, 1986, the petitioners Richard Flowers and H. Jefferson commenced Proceeding Number 1 pursuant to CPLR article 78, challenging those portions of Directive Number 4911 of the New York State Department of Correctional Services (hereinafter 4911) which allegedly banned the use or possession of A/C electrical adaptors at State correctional facilities and which set a $75 maximum limit on the value of radio or radio/tape player devices possessed by State inmates. The petitioners alleged that the foregoing restrictions were not reasonably related to the promotion of legitimate governmental objectives and that the regulations violated a prior directive which purportedly gave inmates unconditional entitlement to such items. Included in the petition was a request for class-action certification in view of the "State-Wide" applicability of the directive.

The Attorney-General answered the petition, noting that the Superintendent of the Ossining Correctional Facility was vested with the discretionary authority to prohibit A/C electrical adaptors at that facility in accordance with paragraph 2 of part III of Directive Number 4920 of the New York State Department of Correctional Services, which provides:

"Radios, tape players, and radio/tape player combinations will be of the AM transistor type, battery or AC current; because the electrical systems of certain facilities are not designed to accommodate this equipment, current operated radios, tape players, and radio/tape player combinations may be used only with the permission of the Superintendent".

The Attorney-General, in further defense of 4911, alleged that the restrictions imposed were "reasonably related to the maintenance of proper order in the prison", that they had not been "unreasonably applied" to the petitioners, and that dismissal of the petition was warranted on the ground that the judiciary should not interfere in the day-to-day administration of correctional facilities. In response to the petitioners' request for class action certification, the Attorney-General maintained that since the challenged regulations were to be applied in conjunction with the electrical limitations of each facility, certification pursuant to CPLR 901 would be inappropriate.

Following receipt of the answer, the petitioners' assigned counsel submitted an affirmation wherein he alleged that "any items relating to inmates' ability to receive modern media would affect their enjoyment of free speech, free press, as well as personal goals of self-betterment and rehabilitation." In addition to the constitutional arguments, counsel voiced concerns regarding the technical nature of the issues raised and suggested that dismissal of the proceeding would be improper in the absence of expert testimony as to the electrical capacity of the prison facilities.

The Supreme Court (Rubenfeld, J.), focusing first on the petitioners' request for class-action certification, concluded that a class action would not be the "superior method" for the fair and efficient adjudication of the controversy since "any determination would, by virtue of the principle of stare decisis, be binding on the governmental body and automatically benefit all persons in the class claimed to be represented". The Supreme Court also ruled in favor of the respondents, on the merits, and held that the petition was devoid of facts "which rise to a violation of any constitutional or statutory right * * * or which show that respondents went beyond the appropriate exercise of judgment by prison administrators".

The petitioners now seek appellate review of their claims.

II. PROCEEDING NUMBER 2

Shortly before the Supreme Court issued its judgment in the aforementioned matter, the petitioner Richard Flowers, joined by fellow-inmate Levy Mathis, commenced a separate proceeding pursuant to CPLR article 78, challenging the validity of Directive number 4920 of the New York State Department of Correctional Services (hereinafter 4920), to the extent that it prohibited FM-capacity radio or radio/tape player combinations in 20 designated facilities, including Sing Sing Correctional Facility. Constitutional claims similar to those advanced in the prior proceeding were asserted in their pro se petition. Specifically, the petitioners alleged that the unconditional exclusion of FM radio devices in certain facilities was arbitrary, capricious and violative of the rights guaranteed under the First and Fourteenth Amendments of the United States Constitution. They claimed that FM-capacity radios did not present a threat to prison security and that they should be allowed to possess such equipment in their cells. They suggested, moreover, that the respondents had been operating prison communication systems on an improper frequency, and that the court should order the disclosure of information pertaining to the FM-operating frequencies of the prison pursuant to the Freedom of Information Law. Finally, the petition again included a request for class-action certification.

The petitioners' court-appointed counsel, while not disputing the extent of discretionary powers conferred upon prison authorities, nevertheless alleged, in an amended petition, that FM radios are not "presumptively dangerous" nor "inherently inconsistent" with prison objectives, that the "selective bar" of FM-capacity broadcasting equipment in maximum security facilities was irrational and that 4920 should be modified so as to eliminate the blanket prohibition against the use or possession of such equipment by State inmates. Additionally, counsel brought a motion requesting a judicial subpoena duces tecum for the release of various documents relating to the electrical specifications of transmission systems at Sing Sing Correctional Facility, and authorization for the petitioners' electronic expert to conduct an on-site inspection, inter alia, of the communication systems utilized by Sing Sing Correctional Facility. Counsel alleged that expert analysis regarding the "feasibility of cheaply modifying [the prison's] security transmissions" as well as disclosure of all pertinent documents, would assist in fashioning a remedy which would protect the prison's interests while accommodating the First Amendment rights of the inmates.

The Attorney-General filed separate answers to the pro se petition and the amended petition. He initially explained that FM-capacity radios are not permitted at the facilities listed in 4920 "because they interfere with the facilities' Security and Public Safety communications and transmissions [and] can be modified to monitor such transmissions". In his subsequent response, the Attorney-General cited to the decision rendered in connection with a grievance filed by petitioner Flowers, noting:

"The Supervisor of Radio Communications, Division of Support Operations, has determined that any individual with some talent, incentive, rudimentary tools and time could modify an FM radio so as to monitor security or public safety communications. Further, these radios can be adapted to create a wide area of interference. * * * This action could be a major concern during a facility emergency since inmates would know what type of action the facility was going to take to stop the major/minor incident * * *. Thus, the regulation in question is reasonably related to legitimate penological interests."

The Attorney-General further urged that the motion to compel disclosure and to permit an on-site inspection of the prison should be denied for security reasons and to preserve the confidentiality of the security system. He elaborated: "Anyone with the specifications of the security system can either monitor or jam such security transmissions, placing the lives of the corrections officers and inmates in danger." The petitioners' request for class-action certification was also opposed for reasons similar to those cited in the prior proceeding.

The Supreme Court (Buell, J.) rejected the petitioners' substantive contentions, deferring to the judgment of prison officials with respect to the "day-to-day operations of a correction facility". The court further concluded that the challenged regulation was reasonably related to the maintenance of proper order in the prison and that denial of the petitioners' motion for disclosure and class-action certification was warranted for the reasons specified in the Attorney-General's answer.

The petitioners now appeal.

III.

Before addressing the constitutional aspects of the...