State ex rel. McCamic v. McCoy

Citation166 W.Va. 572,276 S.E.2d 534
Decision Date31 March 1981
Docket NumberNo. 14973,14973
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. Jeremy C. McCAMIC v. Joseph W. McCOY, W. Va. Commr., etc. et al.

Syllabus by the Court

Because of our constitutional and statutory obligations placed on attorneys in regard to representation of prison inmates, in order to justify a prison regulation requiring a physical search of their person and briefcases upon entering a prison, the State must show some factual basis that would warrant the conclusion that attorneys have created some type of security or discipline problem with regard to the inmates.

McCamic & McCamic and Jeremy C. McCamic, Wheeling, for relator.

Chauncey H. Browning, Jr., Atty. Gen., and Joseph C. Cometti, Asst. Atty. Gen., Charleston, for respondents.

MILLER, Justice:

In this original mandamus proceeding, the relator, a practicing attorney, seeks to challenge the constitutionality of certain regulations promulgated at the West Virginia Penitentiary at Moundsville. He contends the regulations unduly restrict the hours during which attorneys may visit inmates. 1 He also maintains that the regulation Factually, it is not disputed that relator represents an inmate of the penitentiary and that he was denied access to his client on a Thursday since this was a nonvisiting day under the prison regulations. On a subsequent visit, he was denied access to his client because he refused to submit to a "pat-down" search of his body, as required under the regulations.

                requiring the search of his person and briefcase before entering the prison is unconstitutional.  2 Finally, he asserts that the attorney conference room is so inadequate that it provides no privacy for communicating with his client and therefore jeopardizes the attorney-client privilege
                

The State's response is rather general and centers on the fact that courts have recognized that the administration of prisons should be left to prison personnel. They rely primarily on Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447, 474 (1979), and our own case of Harrah v. Leverette, W.Va., 271 S.E.2d 322, 331 (1980). See also Tasker v. Griffith, W.Va., 238 S.E.2d 229 (1977); State ex rel. Pingley v. Coiner, 155 W.Va. 591, 186 S.E.2d 220 (1972). However, the management of prisons is not completely unfettered as the foregoing cases recognize. Where prisoners' rights are constitutionally infringed upon, the courts will not hesitate to intervene.

The United States Supreme Court, in several cases, has examined prison regulations to see if they deprive prisoners of their constitutional rights. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the court discussed at some length the constitutional right of prisoners to have access to the courts and the right to some sort of legal assistance and found they should have help in preparing civil rights actions as well as habeas corpus petitions. In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Court declared unconstitutional a prison regulation which precluded law students and paralegals from visiting prison inmates. The Supreme Court in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), struck down a prison regulation that prohibited inmates from assisting other inmates in preparing writs of habeas corpus and other legal papers. In Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), the Court affirmed the judgment of a three-judge court which required state officials to provide indigent prisoners with access to a reasonably adequate law library for preparation of legal actions.

In all these cases, the Supreme Court has found a constitutional right of access to the courts under the due process clause which was summarized in Wolff v. McDonnell, supra :

"The right of access to the courts, upon which Avery was premised, is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights." 418 U.S. at 579, 94 S.Ct. at 2986, 41 L.Ed.2d at 964.

In West Virginia, we have an explicit provision regarding access to our courts in Article III, Section 17 of our Constitution:

"The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay."

Furthermore, under W.Va.Code, 62-3-1, we recognized in State ex rel. Partain v. Oakley, W.Va., 227 S.E.2d 314 (1976), that attorneys have a duty to represent indigent defendants at trial. At the post-conviction stage, our habeas corpus statute requires appointment of an attorney where the preliminary writ is issued and the relator is indigent. W.Va.Code, 53-4A-4. It can hardly be doubted then, that in light of an An attorney's special position is based not only on the foregoing representational obligation with the prison inmate's right of access to the courts, but also upon the fact that the legal profession has an historic role in the administration of justice. We, as well as other courts, have recognized that lawyers are officers of the court as they assist the courts "in the discharge of the vital duties of the administration of law and the resolving of legal controversies." In re Eary, 134 W.Va. 204, 208, 58 S.E.2d 647, 650 (1950); 7 Am.Jur.2d Attorneys At Law § 3 (1980). For this reason, in order to be admitted to the practice of law it is required that an attorney possess a good moral character and have a fitness to practice his profession. Once he is practicing law, if he violates the standards of professional conduct, he is subject to discipline and removal from practice. W.Va.Code, 30-2-1, et seq; In re Brown, W.Va., 273 S.E.2d 567 (1980); Committee on Legal Ethics v. Scherr, 149 W.Va. 721, 143 S.E.2d 141 (1965). With these general principles in mind, we approach the issues in this case.

attorney's obligation to represent criminal defendants, including those in prison, the attorney occupies a different position than the general public in relation to the penal system.

I. THE SEARCH

Recently in State v. Moore, W.Va., 272 S.E.2d 804 (1980), we discussed at some length the various constitutional exceptions that permit a warrantless search and noted that both the Federal and State Constitutions place "the burden ... on the State to show by a preponderance of the evidence that the warrantless search falls within an authorized exception." 272 S.E.2d at 808.

The State's effort to justify pat-down searches of attorneys before entering the prison rests upon general assertions that the search is necessary for security, primarily to prevent delivery of weapons or contraband to inmates. Such a generalized response may well be sufficient to warrant such regulations for most visitors, including relatives of inmates, who are neither bound by any professional standards of conduct nor required to represent inmates in asserting their court claims. However, in the absence of any specific facts or incidents where attorneys have attempted improper activity, we do not presume that attorneys will engage in conduct that will jeopardize security or impair prison discipline. For this reason, we conclude that the State has failed to sustain its burden of proof to show the necessity of a warrantless pat-down search of attorneys.

This particular issue of pat-down searches of attorneys at prisons has apparently not been before other courts. There are several cases where courts have recognized the special role of attorneys, thereby exempting them from normal prison regulations. In Case v. Andrews, 226 Kan. 786, 603 P.2d 623 (1979), the court held that a camera monitoring the attorney's conference room interfered with the constitutional right of effective assistance of counsel and recognized the attorney's role stating:

"It must be emphasized that attorneys are officers of the court. It should be presumed, absent a contrary showing, that an attorney representing an incarcerated client will strive to uphold the credibility and standards of the judicial system rather than to subvert them." 226 Kan. at 791, 603 P.2d at 627.

See also Henry v. Perrin, 609 F.2d 1010 (1st Cir. 1979), cert. denied, 445 U.S. 963, 100 S.Ct. 1652, 64 L.Ed.2d 239 (1980) (warrantless search of attorney's briefcase by prison officials).

We are aware that federal courts have sanctioned a warrantless pat-down search of airplane passengers and their carry-on bags under what is known as the administrative search exception. 3 However, in these cases there was found, as the initial factual threshold, a serious security problem existed, namely, the hijacking of aircraft. These cases required the government to demonstrate that its security measures are reasonably related to their administrative needs, i. e. a safe place, and that the procedures used are the least intrusive with regard to personal privacy, to achieve the government's security need. Thus, in the hijacking area, as a prerequisite to a pat-down search, courts have generally required that there be an initial screening of passengers by a magnetometer and only if the person activates the detector can there be a further pat-down search. E. g., United States v. Henry, 615 F.2d 1223 (9th Cir. 1980); United States v. Davis, 482 F.2d 893 (9th Cir. 1973); United States v. Ruiz-Estrella, 481 F.2d 723 (2nd Cir. 1973); United States v. Epperson, 454 F.2d 769 (4th Cir. 1972), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334. Furthermore, with regard to the pat-down search after activating the magnetometer, most of these aforementioned decisions require that the individual be given the option to avoid the search by not boarding the plane. 4

We are also aware of cases where administrative searches are conducted before entering courthouses. I...

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