Mahan v. Maschner, 57804

• Decision Date: 24 April 1986
• Docket Number: No. 57804,57804
• Citation: 717 P.2d 1059,11 Kan.App.2d 178
• Parties: Jewell MAHAN, Appellee, v. Herb MASCHNER, et al., Appellants.
• Court: Kansas Court of Appeals

Page 1059

717 P.2d 1059

11 Kan.App.2d 178

Jewell MAHAN, Appellee, v. Herb MASCHNER, et al., Appellants.

No. 57804.

Court of Appeals of Kansas.

April 24, 1986.

Syllabus by the Court

1. Even though imprisoned, inmates are still guaranteed the right to free speech. This right may only be infringed as an incident of imprisonment when it is demonstrated that the infringement will further the substantial governmental interests of security, order or rehabilitation of inmates and that the infringement is no greater than necessary.

2. While prison authorities are ordinarily given wide discretion in the internal management of prison matters, the censorship or restriction of inmate mail must be able to pass constitutional muster.

3. Constitutional limitations on the right of prison authorities to censor the personal correspondence of inmates apply equally to the censorship of publications.

4. In a review of an order barring prison authorities from interfering with an inmate's receipt of a magazine by mail subscription, it is held; (1) the prison officials failed to carry the burden of showing that the censorship was constitutionally permissible, and (2) the district court's order prohibiting any interference in the receipt of the magazine is overbroad.

Charles Simmons and Larry Cowger, Dept. of Corrections, Topeka, for appellants.

Ruben Jorge Krisztal, of Krisztal & Bellen, Leavenworth, for appellee.

Before REES, P.J., and PARKS and BRAZIL, JJ.

PARKS, Judge:

This action arose out of a petition for writ of habeas corpus filed by petitioner, Jewell Mahan, an inmate at the Kansas State Penitentiary (KSP). The district court granted the relief sought by the petition and respondent prison officials appeal.

Petitioner started a subscription to the magazine "High Times" in the fall of 1983. He received the first three issues of the monthly magazine but no other issues were delivered through the prison mail room. Petitioner wrote the subscription department of the magazine about the missing issues and was assured that the magazine was being sent. Eventually, petitioner discovered that the magazine's delivery was prohibited by prison authorities because the periodical is concerned with drugs and drug use. Petitioner filed a petition for writ of habeas corpus requesting the court order KSP to stop interfering with delivery of the magazine.

The district court held an evidentiary hearing to hear testimony in support of respondent's contention that the censorship of the magazine was justified. A copy of the magazine was entered into evidence and two KSP employees testified concerning the magazine's content and its possible impact on the prison community. After taking the case under advisement, an order was prepared reflecting the conclusion of the district judge that petitioner was entitled to receive "High Times" without any interference or censorship by KSP. The respondents then filed their appeal from this order. At oral argument, petitioner waived argument and conceded that the appeal was timely filed.

A prisoner may use a petition for writ of habeas corpus to challenge the legality of the conditions of his confinement and to seek equitable relief from those conditions. Foster v. Maynard, 222 Kan. 506, 512, 565 P.2d 285 (1977). While ordinarily conditions of confinement relate to mistreatment in the context of living conditions and disciplinary measures, alleged violations of First Amendment rights have been found to fall within the scope of conditions which may be challenged by habeas corpus. Wright v. Raines, 1 Kan.App.2d 494, 499, 571 P.2d 26, rev. denied 222 Kan. 749 (1977), cert. denied 435 U.S. 933, 98 S.Ct. 1508, 55 L.Ed.2d 530 (1978). Moreover, it has been held that, even though imprisoned, inmates are still guaranteed the right to free speech. This right may only be infringed as an incident of imprisonment when it is demonstrated that the infringement will further the substantial governmental interests of security, order or rehabilitation of inmates and that the infringement is no greater than necessary. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). In short, despite the exigencies of confinement, an inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). Therefore, while prison authorities are ordinarily given wide discretion in the internal management of prison matters, the censorship or restriction of inmate mail must be able to pass constitutional muster.

Both Pell and Martinez involved some type of direct, personal correspondence with inmates rather than the right of inmates to receive the more general communications of a periodical. However, subsequent federal cases have held that the same type of constitutional scrutiny must be applied to the censorship of magazines as is applied to limitations on correspondence. Guajardo v. Estelle, 580 F.2d 748, 760 (5th Cir.1978); Aikens v. Jenkins, 534 F.2d 751, 755 (7th Cir.1976). Guajardo stated as follows:

"There is also some question whether the Martinez rule is also applicable to the censorship of publications. See Blue v. Hogan, 553 F.2d 960, 963 n. 4 (5 Cir.1977). The Court in Martinez stated that its rule was dependent upon the first amendment rights of persons wishing to engage in direct, personal correspondence with inmates rather than the first amendment rights of the inmates themselves. Later Court opinions have indicated, however, that prisoners do retain those first amendment rights that are not inconsistent with their status as a prisoner or with the legitimate penological objectives of the correctional system. Pell v. Procunier, supra, 94 S.Ct. at 2804. Challenges to prison restrictions that are asserted to inhibit first amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system. Id. We think that Martinez and Pell, taken together, establish a rule that prisoners retain those first amendment rights not inconsistent with prison security, order or rehabilitation. Cf. Jones v. North Carolina Prisoner's Labor Union [433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) ], supra." Guajardo, 580 F.2d at 760.

Therefore, assuming that the Martinez test does apply, the burden is upon the prison officials to prove that any restrictions on the right of an inmate to receive a certain magazine are in furtherance of substantial governmental interests of security, order or rehabilitation and are no more restrictive than necessary to secure those interests.

Here, the specific issues of "High Times" which were censored by the prison authorities were not introduced into evidence. Instead, a single issue of the magazine (August 1984 issue) was obtained by counsel and proffered as representative of the magazine. Thus, KSP did not simply seek to justify the censorship of the particular issues withheld from petitioner but to justify a general ban on the publication's receipt by any prisoner. In Pepperling v. Crist, 678 F.2d 787, 791 (9th Cir.1982), a case involving a general ban of "High Times," the case was remanded because a copy of the magazine had not even been put into evidence. However, the court noted that the blanket prohibition against receipt of a publication by any prisoner carries a heavy presumption of unconstitutionality. This is true because Martinez requires that any censorship measures taken be no more restrictive than necessary to preserve legitimate penological concerns. Since the wholesale banning of issues of a magazine not yet published would appear unlikely to be as least restrictive as possible, an even greater burden of proof is cast on the officials failing to carry out the censorship in a limited fashion.

The issue of "High Times" offered into evidence includes a variety of features and articles. There is an article on military involvement in drug law enforcement, a printing of the discussion which took place at a criminal law seminar about the ethics of undercover surveillance, and a report of the experiences of users of psychedelic drugs, both positive and negative. The magazine also includes tips on cultivating marijuana plants, short fiction and news items related to drug enforcement. The advertisements carried by the magazine are generally for products which may be used in cultivating and harvesting plants as well as seeds for growing hallucinogenic substances and literature on drug-related topics. Some of the letters to the magazine and shorter items reflect a reverential attitude toward various drugs but the articles and longer features do not advocate or encourage drug use. Many entries are fairly straightforward news reports or informational pieces.

The respondent's expert witness on prison security stated his general opinion that the magazine...