Prisoners Union v. Department of Corrections

• Decision Date: 17 September 1982
• Court: California Court of Appeals Court of Appeals
• Parties: The PRISONERS UNION, a nonprofit corporation; Paul Comiskey, Victor Coupez, Nancy Hill, Florence Kelly and Willie Brandt, Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, Ruth Rushen, Director; R. G. Pulley, Superintendent of the Correctional Training Facility at Soledad; etc., Defendants and Respondents. Civ. 54007.

Page 634

185 Cal.Rptr. 634

135 Cal.App.3d 930

The PRISONERS UNION, a nonprofit corporation; Paul Comiskey, Victor Coupez, Nancy Hill, Florence Kelly and Willie Brandt, Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, Ruth Rushen, Director; R. G. Pulley, Superintendent of the Correctional Training Facility at Soledad; etc., Defendants and Respondents.

Civ. 54007.

Court of Appeal, First District, Division 2, California.

Sept. 17, 1982.

As Modified on Denial of Rehearing Oct. 15, 1982.

Hearing Denied December 1, 1982.

Michael R. Snedeker, Smith & Snedeker, Sacramento, for plaintiffs and appellants.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Karl S. Mayer, Thomas P. Dove, Deputy Attys. Gen., San Francisco, for defendants and respondents.

GRODIN, Presiding Judge.

Appellant Prisoners Union is a nonprofit organization concerned with the welfare of prisoners and their families. By this action for declaratory and injunctive relief, it and certain of its members challenge the power of state prison officials to ban it from distributing informational literature to visitors of inmates in a public parking lot located on prison property but outside prison walls. We hold that such activity is protected by the federal and state Constitutions, and that it cannot be banned absent a showing that such activity would pose an overriding threat to prison security, or to another similar state interest. Since we find no such showing on this record, we conclude that appellants are entitled to the relief which they seek.

The prison at issue is the Correctional Training Facility known as Soledad, located two miles north of the town of Soledad in Monterey County. Two of the three facilities at Soledad, North and Central, share a common parking lot outside the entrance building to the prison. The lot is open to members of the general public wishing to visit a prisoner or to purchase crafts in the prison hobby shop located in the entrance building. No security check or clearance is required as it is for entry into the prison itself. On weekends, it is common for several hundred persons to come to the entrance building, via cars or buses, to visit prisoners. The only prisoners allowed in the parking lot are those classified as "minimum B custody" (i.e., prisoners with low assaultive tendencies who are shortly due to be released) who are assigned to maintain the area. Organizations representing employees of the prison are permitted to use the parking lot as a forum for communicating with those employees.

In March 1980, several members of the Prisoners Union attempted to distribute literature within the entrance building to the prison, but they were told to leave, and were escorted off prison-owned property. They recommenced their activity at the gate to the prison property, just off the county frontage road, but sheriff's deputies instructed them to leave because stopping cars created a traffic hazard.

In April 1980, the Prisoners Union wrote the Soledad prison superintendent, requesting permission to set up a card table in the corner of the visitors parking lot to give information and literature to the visitors of the prisoners as they are leaving the institution. The letter stated that the union wished to keep families of prisoners informed of numerous bills being considered in the Legislature, and that there was no other way of doing it. It offered to inform prison authorities in advance of any such activity, to provide identifications of persons who would come on the grounds, to limit the number of persons who would come, and to stay within a designated area.

The superintendent at Soledad denied the union's request without explanation, and the union then referred it to the Director of Corrections. She responded that it was the policy of the department that, except for recognized employee organizations, private organizations were not permitted "to enter institution grounds to further their aims." Appellants then instituted this action for declaratory and injunctive relief.

At the hearing on the order to show cause, Dennis Martell, program administrator at Soledad, was asked to explain the reason for the ban on informational activity by non-employee organizations. He stated: "The administration at Soledad believes it's counterproductive and it threatens the safety and security of the institution ... there are a number of issues that are raised or provided to the visitors coming into the institution that we feel either excites or agitates or develops some unrest among the inmates that could have some detrimental effects." He also stated that the department is concerned with such activity "being a front for organizing within the institution by the Prisoners' Union." Finally, he testified that the parking lot is a busy, congested area with minimal security, in which contraband such as weapons and narcotics are found, and that if tower guards were to survey activities in the parking lot they would have to take their attention away from other areas, such as the fence around the prison.

The trial court found the evidence insufficient to establish any prior breach of prison security by members of the Prisoners Union or their agents, but it also found that "to allow members of the public, whether it be the Prisoners' Union or any other group, to distribute literature as requested by the Prisoners' Union herein, would create a 'public forum' on prison grounds and substantially increase security problems at the prison," and that "[o]ther reasonable means of distribution are available including off-grounds distribution, direct distribution to inmates, and distribution to inmate families by mail or otherwise." Based on these findings, and what it considered to be applicable legal principles, the trial court denied the requested preliminary injunction. Upon request by appellants, the trial court entered judgment denying a permanent injunction and declaratory relief, and it is from that judgment that this appeal is pursued.

Discussion

I.

The peaceful pamphleteering appellants propose to engage in is a form of expression protected by the First Amendment to the United States Constitution (Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419, 91 S.Ct. 1575, 1577-78, 29 L.Ed.2d 1; Lovell v. Griffin (1938) 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949), and by article I, sections 2 and 3 of the California Constitution (see Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, affd. (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741; In re Hoffman (1967) 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353). Thus, so long as it does not incite to unlawful acts, it is not subject to regulation based upon its content. (Brandenburg v. Ohio (1969) 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430.) It is, however, subject to reasonable regulation as to time, place, and manner (e.g., Cox v. New Hampshire (1941) 312 U.S. 569, 575-576, 61 S.Ct. 762, 765-66, 85 L.Ed. 1049).

Respondents contend that the prohibition against use of the prison parking lot is ipso facto a reasonable regulation as to place because such an area is not and cannot be made to be a "public forum" for the purpose of communication. Indeed, they suggest that analysis need proceed no further than that simple proposition. The trial court's findings reflect, at least in part, a similar view of the matter.

It appears from our analysis of the cases, however, that the principles governing the right to free expression in public places, including grounds of a prison to which the public has access, cannot be contained within such a rigid formulation. The term "public forum," which originated in a dissenting opinion by Justice Douglas in Adderley v. Florida (1966) 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 refers typically to those places historically associated with First Amendment activities, such as streets, sidewalks, and parks. (See, e.g., Hague v. C.I.O. (1939) 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.) A leading constitutional scholar has characterized that term as "constitutional shorthand for the proposition that ... government cannot regulate speech-related conduct in such places except in narrow ways shown to be necessary to serve significant governmental interests ... even if the regulation challenged as invalid leaves would-be speakers or paraders with ample alternatives for communicating their views." (Tribe, American Constitutional Law (1978) at p. 689.)

These are not the only areas where speech has received constitutional protection, however. Rather, as the Court of Appeals for the Ninth Circuit has observed: "A hierarchy of forums emerges from the cases. At one extreme--and most protected from any form of regulation--are areas such as public streets ... and parks, traditionally recognized as centers for the public communication of ideas. Less protected are facilities such as libraries and schools, where the government has the power to limit speech to maintain the order required to carry on the purpose of those institutions. Least shielded from regulation are public institutions which do not perform speech-related functions at all--such as hospitals, jails or military bases. Here the government is free to exclude even peaceful speech and assembly which interferes in any way with the functioning of those organizations. The basic thrust of these cases is to limit regulation to that which proscribes expression that is 'basically incompatible with the normal activity of a particular place at a particular time.' " (United States v. Douglass (9th Cir. 1978) 579 F.2d 545, 548-549, emphasis added.) The court's quotation is from Grayned v. City of Rockford (1972) 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222.

The Court of Appeals for the Third Circuit recently relied upon Grayned for a similar analysis: "[W]hen the state restricts...