Gilmore v. Lynch, No. 22052 A-B-C-D-E-F.

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtCHAMBERS, MERRILL and ELY, Circuit
Citation400 F.2d 228
PartiesRobert O. GILMORE, Jr., et al., Appellants, v. Thomas C. LYNCH et al., Appellees.
Docket NumberNo. 22052 A-B-C-D-E-F.
Decision Date16 August 1968

400 F.2d 228 (1968)

Robert O. GILMORE, Jr., et al., Appellants,
v.
Thomas C. LYNCH et al., Appellees.

Nos. 22052 A-B-C-D-E-F.

United States Court of Appeals Ninth Circuit.

August 16, 1968.


400 F.2d 229

John Wahl (argued), Paul N. Halvonik (argued), Marshall Krause for ACLU (amicus), San Francisco, Cal., for appellants.

Robert R. Granucci (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., San Francisco, Cal., for appellees.

Before CHAMBERS, MERRILL and ELY, Circuit Judges.

MERRILL, Circuit Judge.

This appeal is taken from an interlocutory order of the District Court for the Northern District of California denying petitioners' motion for the convening of a three-judge court pursuant to 28 U.S.C. § 2281.1

The appeal is taken pursuant to 28 U.S.C. § 1292(b), the district judge having, in his order, certified that in his opinion the order involved "a controlling question of law as to which there is substantial ground for difference of opinion," and that "an immediate appeal from the order may materially advance the ultimate termination of the litigation." The controlling question as certified was whether appellants' claims involved a substantial question of constitutional law under the standards established in California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938), and Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933).2

Appellants are 89 inmates of the California State Prison at San Quentin. The complaint names as defendants the People of the State of California, various prison officials and the head of the State Department of Correction. Appellants seek an injunction against the enforcement of certain rules adopted by the State Director of Corrections and contained in Department of Corrections

400 F.2d 230
Transmittal Letter No. 26/66, dated September 19, 1966, relating to the contents of prison law libraries and the future prison policy as to the obtaining and keeping by prisoners of private law books and court opinions.3 Appellants contend that these regulations violate the due process and equal protection clauses of the Fourteenth Amendment in that they seriously infringe their rights of access to the courts and discriminate between indigent and affluent prisoners (in that the latter can obtain outside counsel for legal research, thus gaining effective access to the courts)

In our judgment the constitutional questions thus posed cannot be said to be plainly unsubstantial under the Poresky standards. Courts are currently struggling with the question of the extent of a prisoner's rights to have access to legal materials, e. g., our opinion in Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir.), cert. denied, 368 U.S. 862, 82 S.Ct. 105, 7 L.Ed.2d 59 (1961). The Supreme Court has not yet spoken on the subject and the law can hardly be said to be settled.

We conclude that the District Court was in error in its ruling that no substantial question of constitutional law was presented.

Appellees urge affirmance upon two additional grounds:

First, they contend that the regulations in question were not those of an "administrative board or commission" under § 2281, but rather were promulgated by one man — the State Director of Correction.

We find no merit in this distinction. While the statute making provisions...

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23 practice notes
  • Clutchette v. Procunier, No. C-70 2497.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 21, 1971
    ...and had subsequently been approved by the Oregon State Board of Control as required by that statute. Similarly, in Gilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968), the court held that a three-judge court should be convened to hear a challenge to a state regulation establishing rules to be fo......
  • Wisconsin State Emp. Ass'n v. Wisconsin Nat. Resources Bd., No. 68-C-143.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • April 2, 1969
    ...state policy. See Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 292, 43 S. Ct. 353, 67 L.Ed. 659 (1922); Gilmore v. Lynch, 400 F.2d 228, 230 (9th Cir. 1968); cf. Hatfield v. Bailleaux, 290 F. 2d 632, 635 (9th Cir.), cert. denied 368 U.S. 862, 82 S.Ct. 105, 7 L.Ed.2d 59 2 The declaratio......
  • Clutchette v. Procunier, No. 71-2357.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 29, 1974
    ...(three-judge court not required when regulation challenged applied only to single Oregon prison), with Gilmore v. Lynch (9th Cir. 1968), 400 F.2d 228 (three-judge court required where regulation challenged established rules for every prison in California). See also Sands v. Wainwright (5th ......
  • Sellers v. Regents of University of California, No. 23581.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 17, 1970
    ...§ 2281 as construed in Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Gilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968); and Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962), we are still at a loss to find a basis for injunctive relief on this......
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23 cases
  • Clutchette v. Procunier, No. C-70 2497.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 21, 1971
    ...and had subsequently been approved by the Oregon State Board of Control as required by that statute. Similarly, in Gilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968), the court held that a three-judge court should be convened to hear a challenge to a state regulation establishing rules to be fo......
  • Sellers v. Regents of University of California, No. 23581.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 17, 1970
    ...§ 2281 as construed in Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Gilmore v. Lynch, 400 F.2d 228 (9th Cir. 1968); and Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962), we are still at a loss to find a basis for injunctive relief on this......
  • Clutchette v. Procunier, No. 71-2357.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 29, 1974
    ...(three-judge court not required when regulation challenged applied only to single Oregon prison), with Gilmore v. Lynch (9th Cir. 1968), 400 F.2d 228 (three-judge court required where regulation challenged established rules for every prison in California). See also Sands v. Wainwright (5th ......
  • Wisconsin State Emp. Ass'n v. Wisconsin Nat. Resources Bd., No. 68-C-143.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • April 2, 1969
    ...state policy. See Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 292, 43 S. Ct. 353, 67 L.Ed. 659 (1922); Gilmore v. Lynch, 400 F.2d 228, 230 (9th Cir. 1968); cf. Hatfield v. Bailleaux, 290 F. 2d 632, 635 (9th Cir.), cert. denied 368 U.S. 862, 82 S.Ct. 105, 7 L.Ed.2d 59 2 The declaratio......
  • Request a trial to view additional results

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