Keker v. Procunier

Decision Date08 August 1975
Docket NumberCiv. No. S-74-348.
CourtU.S. District Court — Eastern District of California
PartiesJohn W. KEKER et al., Plaintiffs, v. R. K. PROCUNIER et al., Defendants.



John W. Keker, pro se, and Kipperman, Shawn & Keker, San Francisco, Cal., for plaintiffs.

Evelle J. Younger, Atty. Gen. of California by William G. Prahl, Sacramento, Cal., for defendants.


MacBRIDE, Chief Judge.

The primal issue presented by this case is whether attorneys at law may state a claim for violation of their rights to practice their chosen profession. This action was brought by two licensed California attorneys against officials of the California state correctional system pursuant to Title 42 U.S.C. § 1983.1 Jurisdiction is afforded by Title 28 U.S.C. § 1343.2

Plaintiffs allege in their complaint that defendants interfered with their rights to lawfully practice their profession by the creation of conditions at Folsom prison. The complaint alleges that on May 7, 1974, plaintiffs visited their client, Earl Gibson, at the prison, and were met with the following conditions: an uncomfortably hot interview room, separation from their client by a glass partition, communication via telephone, and continual surveillance by a guard who observed them through a window. Additionally, plaintiffs claim that a woman, non-attorney investigator visited the same prisoner immediately before them and was not subjected to the same conditions. On these facts, plaintiffs allege that the following constitutional provisions were abridged: Fourteenth Amendment due process clause; Fourteenth Amendment equal protection clause; Eighth Amendment cruel and unusual punishment provision; and Sixth Amendment right to counsel provision. Plaintiffs seek injunctive relief, compensatory damages and punitive damages.

The case is currently before the court for resolution of defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b). The motion to dismiss challenges directly the legal sufficiency of the complaint and asserts that the complaint fails to state a claim against defendants upon which relief can be granted. Although defendants have attached numerous affidavits and exhibits to their memoranda, this court need not and does not consider them on a motion to dismiss, but rather, construes the allegations of the complaint in a light most favorable to the plaintiffs, and accepts the allegations of the complaint as true. California Motor Transportation Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Dodd v. Spokane County, 393 F.2d 330 (9th Cir. 1968); Brown v. Brown, 368 F.2d 992 (9th Cir. 1966).


The Fourteenth Amendment guarantees an individual the right to engage in any of the common occupations or professions of life. Such a right is both a "liberty" and "property" right protected from state deprivation or undue interference. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Larkin v. Bruce, 352 F.Supp. 1076 (Wis.1972).

By analogy, recent cases dealing with physicians are instructive in defining the boundaries and limits of the right to practice a profession or to engage in an occupation. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir. 1974), appeal dismissed, cert. denied, 419 U.S. 891, 95 S.Ct. 169, 42 L. Ed.2d 136 (1974); Larkin v. Bruce, 352 F.Supp. 1076 (Wis.1973), appeal dismissed, 483 F.2d 1407 (7th Cir. 1973); Young Women's Christian Association of Princeton v. Kugler, 342 F.Supp. 1048 (N.J.1972), affirmed, 493 F.2d 1402 (3d Cir. 1974).

The United States Supreme Court in Roe v. Wade, supra, and Doe v. Bolton, supra, clarified the right of physicians to assert their constitutional rights to practice medicine, including the right to advise and perform abortions without undue state interference. See Nyberg v. City of Virginia, supra. As Mr. Justice Blackmun, writing for the court in Roe v. Wade, supra, at 163 and at 165, 93 S. Ct. at 732, 733, stated:

"For the period of pregnancy prior to this `compelling' point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State."
"This decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention."

As the Court of Appeals in Nyberg v. City of Virginia, supra, stated, citing the Supreme Court decisions in Roe v. Wade, supra, and Doe v. Bolton, supra:

"We think that the Supreme Court . . . has clearly paved the way for physicians to assert their constitutional rights to practice medicine, which now includes the right to advise and perform abortions." 495 F.2d at 1344.

This court can discern no reason why attorneys should not be afforded the same scope of constitutional protection as is afforded to physicians. Legal issues and questions pervade virtually all aspects of our increasingly complex society. The modern attorney must at times be lawyer, counselor and advocate. Just as the physician is entrusted by society with the enhancement and preservation of life and health, the attorney is charged with advancement and protection of property, of liberty, and occasionally, of life.

Expanding upon its decision in Nyberg v. Virginia, supra, the Eighth Circuit Court of Appeals has recently held that "with even stronger force than the right to practice medicine it may be said that a lawyer has standing to challenge any act which interferes with his professional obligation to his client." See Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation, 507 F.2d 1281 (8th Cir. 1974).3

As an initial matter, it must be said that the acts of the defendant State officials as alleged in the complaint do constitute an interference with plaintiffs' right to practice their profession. The right to practice a profession necessarily includes the right to practice according to the highest standards of that profession. Nyberg v. Virginia, supra; Young Women's Christian Association of Princeton v. Kugler, supra. At the foundation of the legal practice is the right to maintain the privacy and freedom from intrusion essential to the attorney-client relationship.

If plaintiffs and their clients are forced to meet in an uncomfortably hot room when other, more amenable facilities are reasonably available, if communication between attorney and client is circumscribed by partitions, limited by telephone restrictions, and subject to continual surveillance, then clearly the plaintiffs, as attorneys, have been subjected to interference in their right to practice their chosen profession. Additionally, the privacy implicit in the attorney-client relationship has been seriously infringed.4

It is, of course, apparent that a point will be reached on the continuum of the attorney's right to practice at which the interest of the State becomes so important that an interference is countenanced. Such interference by the State would no longer be an "undue" infringement on the right to practice, but would rather be a necessary vindication of a greater right or public interest. There arises, therefore, the question of what standard should be applied by this court in testing the administrative prison regulations and conduct of prison officials which are challenged by plaintiffs.

Standards used for the purpose of evaluating statutory and regulatory classifications vary in accordance with the interests affected. Marshall v. Parker, 470 F.2d 34 (9th Cir. 1972), affirmed 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974). In the typical case, courts test challenged statutes and regulations by the traditional standard of determining whether there is a reasonable basis supporting the enactment or regulation, and whether the enactment or regulation is free from invidious discrimination. This traditional standard is most often applied in economic and social welfare regulations. Hagler v. Finch, 451 F.2d 45 (9th Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1522, 31 L.Ed.2d 805 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L. Ed.2d 231 (1971).

But where the statute or regulation threatens a "basic" civil right, it is considered suspect, and the courts, applying a strict standard, will only sustain the statute or regulation where it can be supported by a showing of a compelling state interest. United States v. Karnes, 437 F.2d 284 (9th Cir. 1971); United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970).

Normally, the compelling state interest test is applied in cases of suspect classifications. Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). However, the courts have not hesitated to apply the compelling state interest standard to test statutory enactments and regulations which interfere with fundamental or basic rights, even though such rights are not expressly or specifically enumerated in the Constitution. Thus, Roe v. Wade, supra, applied the strict standard when testing an interference with the right of privacy; in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 800 (1969), the right of travel; in Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), the right of procreation; and in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18...

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