Payne v. COM. DEPT. OF CORRECTIONS
| Decision Date | 05 December 2002 |
| Citation | 813 A.2d 918 |
| Parties | John M. PAYNE; Paul Nolder; Frank Grazulis; Charles Lee; Richard Guy; all others similarly situated, Petitioners, v. COMMONWEALTH DEPARTMENT OF CORRECTIONS; Martin F. Horn, Secretary; Honorable Thomas Ridge, Governor; Robert Bitner, Chief Hearing Examiner, Respondents. |
| Court | Pennsylvania Commonwealth Court |
John M. Payne, Paul Nolder, Richard Guy and Charles Lee, petitioners, pro se.
Victoria S. Freimuth, Harrisburg, for respondents.
BEFORE: COLINS, President Judge, SMITH-RIBNER, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, COHN, Judge, LEAVITT, Judge. OPINION BY Judge COHN.1
Petitioners, who are currently incarcerated at Pennsylvania State Correctional Institutions, have filed a motion for partial summary judgment with respect to a five-count petition for review filed in this Court's original jurisdiction. Respondents have filed a cross-motion for summary judgment. The two motions are now before the Court for disposition.
Between May and August 1998, the Department of Corrections (Department) disapproved the receipt of certain issues of Penthouse magazine and High Society magazine by Petitioners Grazulis, Nolder and Lee. The Department found the publications to be in violation of the obscenity provisions of the Department's "Inmate Mail and Incoming Publication" policy, DC-ADM 803. Petitioners filed grievances challenging the Department's disapproval of the publications, but Petitioners did not prevail. Petitioners then filed their petition with this Court.
In Count I of the petition, Petitioners seek a declaration that the 1998 amendments to what is colloquially known as Pennsylvania's Obscenity Law, Section 5903 of the Crimes Code, 18 Pa.C.S. § 5903, are unconstitutional on their face and as applied to Petitioners. Petitioners also seek a declaration that DC-ADM 803 is null and void because, contrary to 18 Pa.C.S. § 5903, it does not require a judicial determination as to whether a publication is obscene. In Count II, Petitioners seek a declaration that the Department failed to promulgate DC-ADM 803 as a regulation. In Count III, Petitioners seek a declaration stating that portions of the Prison Litigation Reform Act (PLRA), Sections 6601 to 6608 of the Judicial Code, 42 Pa.C.S. §§ 6601-6608, are unconstitutional. In Count IV, Petitioners seek a declaration that the Department failed to promulgate as a regulation the guidelines for assessing inmate accounts established pursuant to Sections 6602(c) and 6608 of the PLRA, 42 Pa.C.S. §§ 6602(c) and 6608. Finally, in Count V, Petitioners seek a declaration that the Department's retroactive application of Section 9728 of the Judicial Code, 42 Pa.C.S. § 9728, is unconstitutional.
Petitioners' motion for partial summary judgment relates only to Counts III, IV and V of the petition. Respondents' cross-motion relates to all five counts of the petition.2
Respondents argue that they are entitled to judgment as a matter of law with respect to Petitioners' claim that the Department's incoming publications policy, DC-ADM 803, is null and void because it violates Section 5903 of the Obscenity Law. We agree.
DC-ADM 803 provides that the Department's "Incoming Publication Review Committee" shall determine whether an inmate may receive a publication. See 37 Pa.Code § 93.2(g)(1). In making that determination, the committee shall consider whether the publication contains obscene material as defined in 18 Pa.C.S. § 5903. See 37 Pa.Code § 93.2(g)(3)(iv). Petitioners' claim is that Section 5903 does not authorize the Department to make its own determination as to whether a publication is obscene but, rather, requires an obscenity hearing before an impartial judicial tribunal. (See Petitioners' brief in response to cross-motion at 2.)
Section 5903 provides, in pertinent part, as follows:
(Emphasis added.)
We note that, under Section 5903(a)(9), it is a crime for an employee of the Department to "knowingly" permit obscene material to enter a state correctional institution. The statute defines the word "knowing" to include a "belief" that warrants further inspection of the material. In other words, this Section anticipates that, if a Department employee were to believe that a publication contains obscene material, the employee would examine the publication and decide whether to permit delivery of the publication to a prisoner. The employee's failure to inspect the publication and to make an individual obscenity determination could result in the employee's conviction of a crime. Thus, the Department's policy, which requires that a committee of employees inspect incoming publications for obscene material, is consistent with the statutory provisions.
Accordingly, Respondents are entitled to judgment as a matter of law on this issue.
Respondents argue that they are entitled to judgment as a matter of law with respect to Petitioners' claim that the 1998 amendments to Section 5903 are unconstitutional on their face and as applied. We agree.
The 1998 amendments added subsections (a)(7), (a)(8) and (a)(9). As previously stated, Section 5903(a)(7) prohibits the knowing delivery of obscene materials to a state correctional institution; Section 5903(a)(8) prohibits the possession of obscene materials by inmates; and Section 5903(a)(9) prohibits an employee from knowingly permitting obscene materials to enter a state correctional institution.
First, Petitioners claim that the 1998 amendments are unconstitutional because they violate Article I, section 7, of the Pennsylvania Constitution. Article I, section 7, provides, in pertinent part, that the "free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty." Pa. Const., Art. I, § 7.
Petitioners acknowledge that obscenity is not protected by the United States Constitution but, Petitioners argue that, under William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 (1961), cert denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961), obscenity is protected by Article I, section 7, of the Pennsylvania Constitution. However, in William Goldman Theatres, our Supreme Court held only that Article I, section 7, protects allegedly obscene materials from pre-censorship. Here, Section 5903(a)(7) criminalizes the delivery of material that is obscene; Section 5903(a)(8) criminalizes the possession of material that is obscene;5 and Section 5903(a)(9) criminalizes permitting the entry of material that is obscene into a prison. Because Article I, section 7, does not protect material that is obscene, the 1998 amendments, on their face, do not violate Article I, section 7, of the Pennsylvania Constitution.
Second, Petitioners argue that the 1998 amendments violate Article I, section 1, of the Pennsylvania Constitution. Article I, section 1, states that all persons have the inherent and indefeasible right to possess property. Pa. Const., Art. I, § 1. However, Petitioners do not have a constitutionally protected property interest in possessing illegal obscene materials. Thus, on their face, the 1998 amendments do not violate Petitioners' property rights.
Third, Petitioners argue that the 1998 amendments violate Article I, section 17, of the Pennsylvania Constitution....
To continue reading
Request your trial
-
Payne v. Commonwealth Dept. of Corrections
...Commonwealth Court granted each motion in part and denied each in part. Payne v. Commonwealth of Pennsylvania, Department of Corrections, 813 A.2d 918 (Pa.Cmwlth.Ct.2002). Specifically, the court ruled that Sections 6602(a) through (c) of the PLRA, which concern the filing fees to be paid i......
-
Shore v. Pa. Dep't of Corr.
...publications containing obscene material may not be received by inmates. This Court upheld those regulations in Payne v. Commonwealth, Department of Corrections , 813 A.2d 918 (Pa. Cmwlth. 2002).... Thus, because this is an internal operating procedure and the Department has placed limitati......
-
Buck v. Beard
...by a court member. Because it was never raised by Buck, the person before us, we will not address it. But see Payne v. Commonwealth Department of Corrections, 813 A.2d 918 10. 42 Pa.C.S. § 9728(b)(5). 11. 42 Pa.C.S. § 9730(b). 12. Absent a hearing, the Department would have no special knowl......
-
Commonwealth Ex Rel. Vance v. Beard, No. 592 M.D. 2006 (Pa. Commw. Ct. 7/20/2009)
...be promulgated as a regulation because the Department had promulgated it as a regulation in 37 Pa. Code §93.2(g). Payne v. Commonwealth Department of Corrections, 813 A.2d 918 (Pa. Cmwlth. 2002), aff'd in part and rev'd in part, 582 Pa. 375, 871 A.2d (2005). The Supreme Court in that case a......