Hoffer v. Commissioner of Correction

• Decision Date: 20 March 1986
• Citation: 490 N.E.2d 417,397 Mass. 152
• Parties: Carl A. HOFFER et al. 1 v. COMMISSIONER OF CORRECTION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 417

490 N.E.2d 417

397 Mass. 152

Carl A. HOFFER et al. ¹ v. COMMISSIONER OF CORRECTION.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 5, 1985.

Decided March 20, 1986.

Freda K. Fishman, Boston, John W. Bishop, Jr., Sp. Asst. Atty. Gen., with her), for Com'r of Correction.

Gerard J. Clark, Boston, for plaintiffs.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and NOLAN, JJ.

WILKINS, Justice.

The Commissioner of Correction (commissioner) challenges portions of injunctions issued by a single justice of this court as impermissible judicial interference with his properly exercised executive authority. Specifically, the commissioner asks us to revoke an order that bars him and other employees of the Department of Correction (department) from withdrawing, without prior court approval, the right of staff attorneys and a paralegal of Massachusetts Correctional Legal Services (MCLS) to meet with inmates confined in a departmental segregation unit (DSU) at the Massachusetts Correctional Institution at Cedar Junction and elsewhere. ²

In February, 1985, each Justice of this court received a copy of a handwritten, four-page letter entitled "An Open Letter from Ten Block" and signed "The Ten Block Inmates." The letter wrote of the recent death of Jorge Bidot, who died in the DSU at Cedar Junction following a fire in his cell. The letter complained of various matters, including alleged restrictions on the right of DSU inmates to leave their cells for exercise and other activities; the warden's requirement that DSU inmates wear "jumpsuits" rather than their own clothing; the denial of medical treatment and of visits from family and attorneys; and the closing of outer steel doors of DSU cells. On February 25, 1985, this court ordered that the open letter "be treated as a Petition pursuant to G.L. c. 211, § 3," and referred it to a single justice for investigation and recommendation. ³

In March, 1985, MCLS moved for orders permitting less restrictive visitations between MCLS attorneys and inmates than the department had allowed. After a hearing, the single justice ordered on April 8, 1985, that staff attorneys of MCLS and an MCLS paralegal "be permitted to meet with inmates confined in (DSU--Block 10) on the subject matters at issue in this proceeding: (1) without the imposition of a mesh, plastic or other barrier preventing the conduct of a 'contact visit'; and (2) without the necessity of conversing through any 'voicebox' or telephonic or other electronic device." The department did not appeal from that order.

In the view of MCLS, the problems persisted and new ones arose. MCLS filed another motion, in May, 1985, seeking further orders concerning visits between inmates and legal staff. On June 20, 1985, the single justice reaffirmed his April 8 order and entered a new order enjoining the department, "superintendents of state correctional institutions where DSU Block 10 inmates are incarcerated and other Department personnel," from revoking visitation rights and barring MCLS counsel or its paralegal "from entering DOC facilities without making application, upon showing of just and lawful cause, to this Court for an alteration of its orders concerning conditions of legal visits with prisoners."

On June 21, 1985, MCLS filed an amended complaint, on behalf of a class of inmates, seeking declaratory and injunctive relief with respect to conditions in segregation units and procedures by which inmates are placed and held in such units. No part of the amended complaint directly concerns visitation rights of inmates with counsel.

On July 23, 1985, the commissioner moved to terminate the orders of April 8 and June 21 allowing "special visitation rights for representatives of [MCLS] to the inmates in the [DSU]." In support of his motion, the commissioner contended that the orders were no longer necessary because their purpose had been served when an attorney-client relationship had been established and a complaint had been filed. He also objected to the "open-ended order" because it put him at risk of contempt. His motion added that "the court's order that visitation privileges of MCLS representatives may not be suspended nor the visits barred except by order of the court may constitute an unnecessary interference with the defendant's statutory obligation to maintain safe custody of the D.S.U" (emphasis supplied). The single justice, reciting that the full court had authorized him to dispose of the issues in this case, denied the motion and made explicit that the orders continued in effect at least until issuance of a judgment. He concluded that the risk of contempt was "an unpersuasive reason to terminate the orders in light of the plaintiffs' need to consult in a reasonable, private manner with their attorneys and paralegal as the case proceeds to trial." As far as appears in the record he has brought before us, the commissioner did not argue to the single justice that the challenged orders were a judicial intrusion into the operations of the executive department in violation of separation of powers principles expressed in art. 30 of the Declaration of Rights.

The plaintiffs argue that this appeal is not properly here because there is no final judgment and an interlocutory appeal is not authorized as to pretrial matters collateral to the ultimate relief sought. Another reason for not deciding the issues presented on appeal, but not argued by the plaintiffs, is that the commissioner did not raise the separation of powers question below. See Albert v. Municipal Court of the City of Boston, 388 Mass. 491, 493-494, 446 N.E.2d 1385 (1983). We do not decide whether immediate review of such an interlocutory order is generally appropriate. Because the practical result in this case will be no different, we will consider, as a courtesy to another branch of government, the issue whether the visitation orders are an unconstitutional intrusion into the commissioner's authority. See Gurry v. Board of Pub. Accountancy, 394 Mass. 118, 126, 474 N.E.2d 1085 (1985)...