Mathis v. Sauser

EASTAUGH, Justice,

with whom COMPTON, Chief Justice, joins, dissenting in part.

Although I agree with the remainder of the court’s opinion, I disagree with Part III. B’s description and resolution of Mathis’s right of access claim. In my view, an inmate has no constitutional right to have an in-cell printer. He must demonstrate injury to establish standing to challenge an executive branch corrections policy that allegedly denies him access to the courts.

I. STANDING

The court declines, op. at 1123, to follow the United States Supreme Court’s latest inmate access ease, Lewis v. Casey, — U.S. —, 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996). The Court there held that inmates at a prison facility must show actual injury in order to bring a denial of access claim. Id. at —, 116 S.Ct. at 2179 . The Court explained that an inmate must show that the alleged shortcomings in the prison facilities “hindered his efforts to pursue a legal claim.” Id. at —, 116 S.Ct. at 2180 .

This requirement derives from the doctrine of standing, which prevents courts from interfering with the political branches of government. Id. at -, 116 S.Ct. at 2179 .

It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution. In the context of the present case: It is for the courts to remedy past or imminent official interference with individual inmates’ presentation of claims to the courts; it is for the politi-

*1126 cal branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur. Of course the two roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, or that will imminently be suffered, by a particular individual or class of individuals, orders the alteration of an institutional organization or procedure that causes the harm. But the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly. If — to take another example from prison life — a healthy inmate who had suffered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medical care, see Estelle v. Gamble, 429 U.S. 97, 103 , 97 S.Ct. 285, 290 , 50 L.Ed.2d 251 (1976), simply on the ground that the prison medical facilities were inadequate, the essential distinction between judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons.

Id.

This court now approves judicial interference with a Standard Operating Procedure (SOP) that defines “the proper and necessary steps required to account and process an inmate’s property,” including the permissible items of personal property in possession and property transfers. This seems to be an unwarranted and unwise judicial interference with basic prison policy, which should be avoided absent a demonstration of impairment of a constitutional right. 1 See Lewis, — U.S. at —, 116 S.Ct. at 2179 ; see also id. at —, — - —, 116 S.Ct. at 2186, 2196-2200 (Thomas, J., concurring) (“State prisons should be run by the state officials with the expertise and the primary authority for running such institutions.”).

Although our standing doctrine is arguably less rigorous than the corresponding federal doctrine, our opinions express the same sort of concerns discussed in Lewis concerning judicial restraint and advisory opinions. See Bowers Office Prods., Inc. v. University of Alaska, 755 P.2d 1095, 1097 (Alaska 1988) (Standing “is based on the principle that courts should not resolve abstract questions or issue advisory opinions.”); Falcon v. Alaska Pub. Offices Comm’n, 570 P.2d 469, 475 (Alaska 1977) (Standing in Alaska “is essentially a judicial rule of self-restraint.”). A “ ‘party asserting standing [must demonstrate] a sufficient ‘personal stake’ in the outcome of the controversy to ensure the requisite adversity.’ ” Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 525 (Alaska 1993) (citation omitted). In Municipality of Anchorage v. Leigh, 823 P.2d 1241, 1245 (Alaska 1992), this court decided that a statute was not unconstitutional as applied to Leigh , and declined to consider whether it might be unconstitutional when applied to a hypothetical claimant. We stated: “The United States Supreme Court summarized the rule well. ‘A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights.’ ” Id. at 1245 n. 11 (quoting with approval County Court of Ulster v. Allen, 442 U.S. 140, 154-55 , 99 S.Ct. 2213, 2223 , 60 L.Ed.2d 777 (1979)).

Some measure of this court’s past concern about judicial review of prisoner disputes is reflected in opinions holding that the superior court lacks appellate jurisdiction over a wide range of inmate claims. See, e.g., Hays v. State, 830 P.2d 783, 784 (Alaska 1992) (“[T]he superior court does not ordinarily have jurisdiction over appeals from prison grievance proceedings” absent issues of “con *1127 stitutional magnitude.”); McGinnis v. Stevens, 543 P.2d 1221 , 1236 & n. 45 (Alaska 1975) (“[A] right to an automatic appeal” is not “a matter of due process, required by Alaska’s constitution,” but “[i]f fundamental constitutional rights are alleged to be abridged in disciplinary proceedings, it would be the duty of the court to inquire into the allegations.”). See also Brandon v. State, Dep’t of Corrections, 938 P.2d 1029, 1032 (Alaska 1997) (holding that the superior court had jurisdiction to hear an administrative appeal of a DOC action involving an alleged substantial impairment of a “fundamental constitutional right,” Brandon’s right to rehabilitation).

This court has not abandoned a requirement of injury to establish standing to challenge DOC’s policies. In Hays , the inmate claimed that his disciplinary dismissal from a prison employment program denied him his constitutionally protected right to participate in rehabilitation programs. In deciding that there was no subject matter jurisdiction over Hays’s appeal, because there was no issue of constitutional magnitude, the court found it important that Hays “was not denied all rehabilitative opportunities.” 830 P.2d at 785 . The court thus looked at whether the discipline actually violated Hays’s right to rehabilitation. 2

In this case, Mathis has not suffered any actual or imminent harm. His computer printer was seized in November 1993. His subsequent filings in state court have been legible and typewritten. Moreover, his appeal briefs have satisfied the appellate rules and were typewritten. See Alaska R.App. P. 212, 513.5. His opening brief was twenty-seven pages and cited forty cases. Mathis was involved in another lawsuit, but he has not shown that the SOP harmed him in that case. The court seems to recognize that the SOP has not actually impaired Mathis’s access right:

The policy which Mathis challenges here presents, under the circumstances, an extremely low level threat to the effectiveness of his access to the courts. No credible argument could be made that having a computer printer present in every cell is necessary to provide reasonable access to the courts.

Op. at 1122.

The court declines to follow Lewis , op. at 1123, and does not explain how Alaska’s own iteration of the standing principle has been satisfied. It apparently concludes that an invalid basis for the restriction (a desire to chill “meritless” prisoner litigation) is so offensive, requiring close scrutiny of “all other supplementary justifications” for the policy, that no actual injury is required for standing. Op. at 1123. In my view, this illegitimacy of purpose would render the absence of actual impairment irrelevant only if there were a constitutional right to have an in-cell printer. See infra Section II. If there is no such right, traditional notions of standing should preclude Mathis’s judicial attack on this executive branch policy.

Absent some justification for adopting a more protective substantive standard for resolving issues of inmate rights of access, I would hold that Mathis does not have standing to attack the SOP for the policy reasons discussed in Lewis .

II. RIGHT TO PRINTER IN CELL

Although the court states that the question is not whether Mathis has a constitutional right to an in-cell printer, op. at 1120,1122,1 think the issue as described by the court inevitably implicates that question. The court states that we must instead determine whether Mathis “has a constitutionally protected interest in not being deprived of his printer if the rationale behind such deprivation is to restrict his right of access to the courts.” Op. at 1120. According to the court, “unless the challenged policy is supported by a valid penological interest, it must be held invalid.” Op. at 1123.

There is no question that Mathis has a constitutionally protected right of access to *1128 the courts. 3 See, e.g., Bounds v. Smith, 430 U.S. 817 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977). The broad question presented is whether the SOP has impaired that right. Absent any showing that Mathis’s access right has been materially impaired, the court’s holding also necessarily assumes that Mathis has a constitutional right to have a printer in his cell. Apparently the court assumes that, if the SOP is not vindicated following a fact hearing on remand, Mathis’s printer will be returned to him for reinstallation in his cell.

I think the legitimacy of DOC’s purpose is irrelevant unless and until Mathis shows that his access has been impaired. He has no constitutionally protected interest in adjudicating the validity of a policy that does not harm him. Any genuine fact dispute about whether there is a valid penological purpose behind the SOP is not yet material. Resolving that dispute will materially improve or restore Mathis’s protected right of access only if a court also determines that Mathis has not otherwise been provided adequate facilities and opportunities. If the SOP did not in fact materially impair Mathis’s right of access, I do not see why our courts should resolve an immaterial fact dispute, however genuine it may be. Such a practice wastes judicial resources. More importantly, it encourages needless judicial interference with the affairs of another branch of state government. See Lewis, — U.S. at —, — - —, 116 S.Ct. at 2186, 2196-2200 (Thomas, J., concurring). I say “needless” because if the SOP does not in fact prevent Mathis from adequately addressing the courts, holding that it is invalid becomes a purely advisory exercise of judicial power. 4

Moreover, a narrow inquiry into the validity of the SOP fails to address the fundamental question: whether DOC has materially impaired access rights. That question cannot be answered without considering what other access facilities and opportunities DOC provides. Even if the SOP had an unarguably valid purpose, depriving prisoners of in-cell printers would in fact deprive them of access unless alternative adequate facilities and opportunities are available. Since the real question here is access, and not purpose, nothing useful is to be gained by remanding in the absence of any genuine dispute about whether Mathis’s access has in fact been impaired.

Thus the question posed by the court necessarily presupposes that there can be a constitutional right to have a printer in a cell, regardless of what other access opportunities the prison provides. Before we can remand for resolution of a constitutional issue in the absence of any demonstration of injury, we must first decide whether the constitution entitles Mathis to an in-cell printer. See Vigliotto v. Terry, 865 F.2d 1131, 1133 (9th Cir.1989) (temporary deprivation of legal materials does not rise to a constitutional deprivation).

We should resolve this narrow legal issue by holding that Mathis does not have a constitutional right to a printer in his cell, and thus that the SOP does not violate the Alaska Constitution. Although reported Alaska cases have not examined how typewriters and computers relate to a prisoner’s right of access to the courts, state and federal courts have considered similar issues. The court’s opinion has collected representative eases. Op. at 1120 n. 4. They make it clear that a prisoner has no right to have a typewriter or word processor in his or her cell. See, e.g., Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir.1994) (no constitutional right to memory typewriter); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir.1989) (disallowing challenge to prison prohibition on memory typewriters *1129 unless “actual injury” alleged); Jackson v. State, 885 F.2d 639, 641 (9th Cir.1989) (upholding prison policy prohibiting use of personal typewriters in library; “no constitutional right to the use of a typewriter”). I would follow that authority and hold that Mathis has no right to have an in-cell printer.

SCCC provides typewriters in the law library and computers in the education department for prisoners’ use. Since pleadings and briefs need not be typewritten in Alaska, Mathis has no absolute need for a typewriter or a printer at all, let alone one in his cell. See Alaska R. Civ. P. 76(h) (the rule does not explicitly allow handwritten documents, but the judge may depart from the rule in cases of emergency or necessity); Alaska R.App. P. 513.5(b)(2).

We need not examine the justifications behind the prison SOP, because a policy restricting computer printers in an inmate’s cell does not violate the inmate’s constitutional right of access. See Taylor, 29 F.3d at 40 (not necessary to consider justifications of prison policy because no constitutional rights infringed).

III. LEGITIMACY OF PENOLOGICAL INTERESTS

The existence of ostensibly legitimate reasons for the SOP should be irrelevant, because Mathis has not demonstrated any actual impairment. I nonetheless feel compelled to mention DOC’s reasons both to correct any impression derived from the court’s opinion that these are merely “supplementary” or patently pretextual justifications, and to confirm why we should not dispense here with a demonstration of actual impairment before we require an unrewarding judicial inquiry into DOC’s intentions. DOC’s remaining reasons for the SOP are set out in the affidavit of Allen Cooper, DOC’s Deputy Director of Institutions:

We intend to prohibit computers and other electronic equipment such as word processors and memory typewriters for a variety of reasons. First, prisoner possession of computer equipment leads to significant administrative problems. The equipment takes up too much space in prisoners cells particularly if the cell is occupied by two prisoners. Special consideration would be required to make sure that prisoners with electronic equipment would not be bunked together which would create significant administrative problems. Similarly, the possession of full-size computer equipment makes it difficult and expensive to transport prisoners and this equipment between institutions. Issues arise as to how permanent a transfer has to be to warrant transporting the computer equipment to a new facility. The equipment is also at great risk to be damaged if transported. If not transported, the equipment would have to be stored.

Prisoner possession of computer equipment also jeopardizes facility security. Prisoners can use their computers and word processing equipment to sell legal work which ultimately leads to the disruption of the orderly operation of DOC facilities. Prisoners who produce legal work can use this leverage to exert control over fellow prisoners who are in need of legal work. Finally, prisoners have been utilizing computers to harass prison officials at Spring Creek with frivolous litigation and paperwork. Computer generated form pleadings with a “fill in the blank” format are widespread and facilitate the filing of meritless legal cases which results in the waste of significant staff time.

DOC’s most compelling justification was concern with the size and amount of property that inmates kept in their cells. The SOP restrictions on inmate property are consistent with this goal:

The size of the boombox will be no larger than will fit in a normal property box

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b. Televisions will be limited to a 13-inch screen. Video Cassette Recorders (VCRs) are not allowed.

c. Inmates will be allowed to have one (1) computer of the “lap-top” type. The computer shall be no larger than 12" x 15" and will be of a size that can fit into a property transfer box....

d. Wind or percussion instruments will not be allowed, with the exception of one (1) harmonica per inmate.

*1130 e. Live plants will be limited in the housing unit to one (1) plant per inmate; the plant will be no taller than twenty-five (25) inches and will be potted in a pot no larger than six-inch (6").

The record memoranda implementing the property SOP are also consistent with a goal of reducing the amount of property in a cell.

Applying the court’s “sliding scale” of scrutiny, and absent any showing that Mathis’s access to the courts was impaired, I would hold that legitimate penological interests justify the SOP. I would therefore affirm the grant of summary judgment against Mathis on the right of access issue.

. Once courts decide whether DOC may preclude in-cell printers, it seems likely they will have to decide related technical issues. The same rationale that covers a printer would seem to apply to a CD-ROM drive and a disk with Alaska’s reported cases. The court's theory, that an illegitimate prison policy impairing court access requires further inquiry, would encompass claims that the prison has denied access to the latest word processor program, a larger hard drive, greater random access memory, and so on. A prison policy that limits prisoner in-cell access to laptop size computers, if pretextual, can be translated into a constitutional right to have a full size, desktop machine that is easier to use.

. I do not mean to suggest that factors which determine whether a prisoner has standing to appeal from prison grievance proceedings necessarily also determine whether a prisoner has standing to attack prison procedures which have not resulted in imposition of discipline against the prisoner.

. No Alaska case has addressed an inmate's right of access to the courts. Cf. Freitag v. Gohr, 651 P.2d 356 (Alaska 1982) (order denying petition for review) (no right to untimely appeal); Bush v. Reid, 516 P.2d 1215 (Alaska 1973) (parolee has right to institute civil suit).

. It is interesting to contemplate the possible effect of the court’s opinion today and what happens if on remand the trial court determines the "supplementary justifications" are illegitimate because they did not motivate promulgation of the SOP. One must assume that DOC will then realize that chilling inmates' right of access is an invalid basis for the SOP, will jettison the improper rationale, and will repromul-gate the SOP supported exclusively by proper grounds. Such a course of events illustrates why a demonstration of impaired access should be required before the judiciary interferes with executive policies.