Gilmore v. Lynch

• Citation: 319 F. Supp. 105
• Decision Date: 28 May 1970
• Docket Number: No. 45878.,45878.
• Parties: Robert O. GILMORE, Jr., John Van Geldern, et al., Plaintiffs, v. Thomas C. LYNCH, Attorney General of California, et al., Defendants.
• Court: U.S. District Court — Northern District of California

319 F. Supp. 105

Robert O. GILMORE, Jr., John Van Geldern, et al., Plaintiffs, v. Thomas C. LYNCH, Attorney General of California, et al., Defendants.

No. 45878.^*

United States District Court, N. D. California.

May 28, 1970.

John Wahl, San Francisco, Cal., for plaintiffs.

George Nock, Deputy Atty. Gen., for defendants.

Marshall W. Krause, American Civil Liberties Union, San Francisco, Cal., amicus curiae on behalf of plaintiffs.

Before DUNIWAY, Circuit Judge, and ZIRPOLI and WOLLENBERG, District Judges.

ORDER GRANTING RELIEF

PER CURIAM.

Plaintiffs herein are prisoners at various facilities administered by the California Department of Corrections. They challenge certain rules and regulations of the Department concerning inmate access to law books, legal materials, and lay assistance in preparing prisoner writs and complaints. Also attacked are procedures of the California State Law Library regarding circulation of legal materials to prisoners. Since plaintiffs ask that the enforcement of these rules be enjoined on constitutional grounds, and since the rules are of state-wide applicability, a three judge court was mandated by the Court of Appeals for this Circuit. Gilmore v. Lynch, 400 F. 2d 228 (9 Cir. 1968), cert. den. Lynch v. Gilmore, 393 U.S. 1092, 89 S.Ct. 854, 21 L.Ed.2d 783 (1968); 28 U.S.C. § 2281; Okl. Natural Gas Co. v. Russell, 261 U.S. 290, 43 S.Ct. 353, 67 L.Ed. 659 (1923); Ala. Pub. Service Comm. v. Southern Ry. Co., 341 U.S. 341, 343 (footnote #3), 71 S.Ct. 762, 95 L.Ed. 1002 (1951).

Some of the prison rules originally brought into question by plaintiffs have since been suppressed or amended in response to changed institutional situations and in light of recent court decisions.¹ Others remain, however, and their constitutionality is now before the Court. More specifically, the Court is asked to pass on Prison Regulation 330.041, which establishes an exclusive list of "basic codes and references" for prison use,² and Director's Rule 2602, which, among other provisions, requires that all legal papers remain in the possession of the inmate to whom they pertain.³ The State Library procedures herein questioned also set up a restricted list of law books available for prison circulation. Evidently, only one copy of each of the listed works is set aside for inmate borrowers, and even a great many of these have been lost or stolen over the years.⁴

The arguments put forward by each side are simply summarized. Plaintiffs allege that the above rules and regulations, taken individually, are arbitrary and unreasonable, and that taken collectively they deny indigent prisoners, and their jailhouse lawyers, the legal expertise which is necessary if access to the courts by these persons is to be in any way meaningful. Defendants answer with a citation to certain dicta in Hatfield v. Bailleaux, 290 F.2d 632 (9 Cir. 1961), a decision by a three-judge court of this Circuit. While affirming the right of the incarcerated not to be unreasonably hindered in making use of the courts, Hatfield added that "state authorities have no obligation * * * to provide library facilities and an opportunity for their use to enable an inmate to search for legal loopholes in the judgment and sentence under which he is held, or to perform services which only a lawyer is trained to perform". Id. at 640.⁵ Defendants conclude from this that the provision of law books in prison libraries is a matter of governmental grace, i. e. a privilege to be withheld or conditioned as the State chooses. Alternatively, the Attorney General argues that the regulations here under attack are defensible in light of certain legitimate state interests. He cites the need for "economy and standardization" as justifying the restricted prison book lists. The rule barring retention by jailhouse lawyers of papers pertaining to the affairs of others is justified by the need to deny such "lawyers" the tools by which they might coerce payment for their services. Finally, the procedures of the State Library are said to be aimed at problems of loss and mutilation occasioned by inmate borrowers.

The dual thrust of defendants' argument is an implicit recognition that labelling prison libraries a "privilege" and not a "right" will not forestall judicial inquiry into the conditions upon which the "privilege" is granted or withheld. See the oft-cited article by Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.R. 1439 (1968). The prisoner is no longer regarded as a temporary "slave of the State" Ruffin v. Commonwealth, 62 Va. 790 (1871), and prison officials are not now such masters of their own domain as to be free of the restraints of constitutional reasonability. Coffin v. Reichard, 143 F. 2d 443 (6 Cir. 1944); Jackson v. Godwin, 400 F.2d 529 (1968). The Courts have used various linguistic formulae to describe the limits to prison rule-making authority, sometimes speaking of constitutional rights which are so preeminent that they cannot be alienated no matter what the needs of penal administration might be, and at other times voiding regulations which confer or withhold "privileges" so arbitrarily as to constitute unequal protection of the laws to certain classes of prisoners. Pierce v. La Vallee, 293 F.2d 233 (2 Cir. 1961); Jackson v. Godwin, cit. supra. In most cases, however, the basic test remains the same: the asserted interest of the State in enforcing its rule is balanced against the claimed right of the prisoner and the degree to which it has been infringed by the challenged rule. Most prison regulations reflect the clear exigencies of a penal situation and the courts are justifiably reluctant to question their wisdom. Austin v. Harris, 226 F.Supp. 304 (D.C.1964). Other rules, though, touch upon interests of which the judiciary is more solicitous, and the burden of justifying these regulations is especially heavy, comparable to the "overwhelming state interest" required by Shapiro v. Thompson, 394 U. S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).⁶

The rights invoked by plaintiffs herein have been given considerable emphasis by past and present case law. Reasonable access to the courts is a constitutional imperative which has been held to prevail against a variety of state interests.⁷ Similarly, the right under the equal protection clause of the indigent and uneducated prisoner to the tools necessary to receive adequate hearing in the courts has received special reenforcement by the federal courts in recent decades. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Richards v. Townsend, 303 F.Supp. 793 (D.C.1969).

Plaintiffs argue, then, that at stake here are two principles of recognized importance, i.e. their rights to reasonable access to the courts, and to equal protection of the laws. But the simple invocation of these phrases will not carry the day for plaintiffs, for they must further show that these rights are not only affected by the regulations under attack, but are infringed to such a degree as to render the justifications offered by the State inadequate and unreasonable as a matter of law. Here, the State alleges that the infringement is minimal, and that its interests are great, and this claim must now be weighed by the Court.

The basic codes and references authorized for prison use under Prison Regulation 300.041 would offer meager fare to a criminal lawyer. There are no annotated codes, no United States Reports, no federal reports, no California Reports. There are unannotated versions of four of California's codes, but there is no copy of any part of the United States Code. There are copies of the rules of the California and certain federal courts, but there is no edition of the Rules of the Federal District Courts which receive a great many of the habeas corpus petitions, and all of the civil rights petitions, filed by California prisoners. There is one copy of Witkin's treatise on California criminal procedure, but there are no other law books or journals, such as "U.S. Law Week," on the list.

The State answers that the needs of a criminal lawyer are not comparable to those of an inmate, since no legal expertise is required of a prisoner asking for judicial relief. All the convicted felon need do is file a brief statement of the facts of his case. If these facts state a colorable ground for relief, an attorney will be appointed to argue the case. There is no need, it is claimed, for legal arguments or citations in a collateral attack upon a judgment of conviction. See 28 U.S.C. § 2242, and Sokol, Federal Habeas Corpus, pp. 92-94 (1969) (Second Edition).

The wording of the statute and the wishes of the scholars notwithstanding, this Court takes notice that more than simple "facts" are needed in order to file an adequate petition for relief by way of habeas corpus. A prisoner should know the rules concerning venue, jurisdiction, exhaustion of remedies, and proper parties respondent. He should know which facts are legally significant, and merit presentation to the Court, and which are irrelevant or confusing. When the Return is filed, it is never without abundant citations to legal authority, and a proper traverse must take cognizance of these points. No attorney filing a habeas petition omits a statement of points and authorities, and neither does the State's attorney in responding to one. Johnson v. Avery, supra note 1, has explicitly recognized the relevance of legal expertise to the filing of petitions in habeas corpus. "For all practical purposes, if illiterate and poorly educated prisoners cannot have the assistance of a `jail-house lawyer', their possibly valid constitutional claims will never be heard in any court." Id., 393 U.S. at 487, 89 S.Ct. at 749, citing the lower court decision at 252 F.Supp. 783, 784 (D.C.1966)....