Amicus Curiae Brief — Lewis v. Casey

g Supreme Court, U.S.

No. 94-1511 ~~ FILED

AUG 14

IN THE UG 1995

Supreme Curt of the Unite tes:

OCTOBER TERM, 1995

SAMUEL LEWIS, et al.,

Petitioners,

Vv.

FLETCHER CASEY, JR., et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

NATIONAL CONFERENCE OF STATE LEGISLATURES,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

AND NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

CHARLES ROTHFELD RICHARD RUDA *

MAYER, BROWN & PLATT Chief Counsel

2000 Pennsylvania Ave.,N.W. STATE AND LOCAL LEGAL

Washington, D.C. 20006 CENTER

(202) 778-0616 444 North Capitol St., N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WILSON - Eras Printine Co.. Inc. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

QUESTION PRESENTED ....2...................ceccccsscceeeesseeeeeee

a

INTEREST OF THE AMICI CURIAE ........................

SUMMARY OF ARGUMENT. ......00...n....eceeeeeeeeeeeseeeeenees

TTT aieteellalicaiinesenssccescosevsceseccesesscestensenecsnceeceoevece

THE COURT OF APPEALS RECOGNIZED AN

IMPROPERLY EXPANSIVE PRISONER RIGHT

5 |, EE

A.

D.

Bounds Requires Only The Elimination Of

Obstacles That Would Frustrate Access To The

. A State That Provides An Adequate Prison Law

Library Need Not Also Offer Specialized Legal

TAS TD

. The Lower Courts’ Detailed Mandate Regarding

The Contents Of And Access To Prison Libraries

I cntcupnsibnnnane

The Decisions Below Exceeded The Proper Judi-

a nnssentonsnnnseconcons

EE EEE

(iii)

14

83

&

iv

TABLE OF AUTHORITIES

Cases Page

Barefoot v. Estelle, 463 U.S. 880 (1983) ................ 12

Bee v. Utah State Prison, 823 F.2d 397 (10th Cir.

DITO. «:ccucsccinsiscnsisnadanmiicsiditenssssiatinseaeaiiamanisabeiciietnicais g

Bell v. Wolfish, 441 U.S. 520 (1979) .......................-. passim

Block v. Rutherford, 468 U.S. 576 (1984) ............... 15

Bounds v. Smith, 430 U.S. 817 (1977) ...............-.-... passim

Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. 1993),

cert. denied, 114 S.Ct. 1081 (1994) —.....00000000.. 11

Burns v. Ohio, 360 U.S. 252 (1959) ........................ 4-5

Califano v. Yamasaki, 442 U.S. 682 (1979) -—.......... 23

Campbell v. Miller, 787 F.2d 217 (7th Cir.), cert.

denied, 479 U.S. 1019 (1986) ................... ...15, 19, 22-23

Corgain v. Miller, 708 F.2d 1241 (7th Cir. 1983) .... 19

Cosby v. Purkett, 782 F. Supp. 1324 (E.D. Mo.

DID i nciccecicsivicinsssnitisisiiismsnrniannicatitnenmiinibeiiiapaaniianigpndanatiinnentinin 19

Cruz v. Hauck, 627 F.2d 710 (5th Cir. 1980) ........ 21

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406

CIID cniccccctssstnstilssnciescubinsedasssctaitemenstssiiamanstiiatiaiaietiias 24

DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489

CE BE CI cnccintinseecbnianicnbititneiciintcsitintetinn 5-6

Douglas v. California, 372 U.S. 353 (1963) ............ 12

Ex Parte Hull, 312 U.S. 546 (1941) ......................... 4

Fay v. Noia, 372 U.S. 391 (1963) .................-...----.- 12-13

Foster v. Basham, 932 F.2d 732 (8th Cir. 1991) .... 11

Griffin v. Illinois, 351 U.S. 12 (1956) ......................- 5

Harrell v. Keohane, 621 F.2d 1059 (10th Cir.

GD secscecscccstinstisiectebicicainiaishiicmetiaiiainiaieasiaeiasiateaithisndiniisiiattiis 15

Hewitt ». Helms, 459 U.S. 460 (1983) .....15, 18, 20, 20-21

Hooks v. Wainwright, 775 F.2d 1433 (11th Cir.

1985), cert. denied, 479 U.S. 913 (1986) ............. 5,8

Johnson v. Avery, 393 U.S. 483 (1969) ................... 5, 8,10

Jones v. North Carolina Prisoners’ Labor Union,

r Lt, |) |. =e 16

Kaiser v. Sacramento, 780 F. Supp. 1309 (E.D.

ie Gn os decictiesemectatansenianidaamnedinee 19

Keyes v. School Dist. No. 1, Denver, Colorado, 413

8 BR Foner 24

Lindquist v. Idaho Bd. of Corrections, 776 F.2d

BR GE GI, TI echt ciccccntiiccctnrectncctinctncnnesnrnenes 14, 17

Vv

TABLE OF AUTHORITIES—Continued

Page

Meachum v. Fano, 427 U.S. 215 (1976) -..........-..... 21, 24

Milliken v. Bradley, 483 U.S. 267 (1977) ............... 23

Minnesota Civil Liberties Union v. Schoen, 448

F. Supp. 960 (D. Minn. 1977) .............................. 11

Missouri v. Jenkins, 63 U.S.L.W. 4486 (U.S. June

eae ee Renin Pat Alt Se ae ene Sl IAS. 7, 23, 24, 25

Morrow v. Harwell, 768 F.2d 619 (5th Cir. 1985) .. 8-9

Murray v. Giarratano, 492 U.S. 1 (1989) passim

Nadea v. Helgemoe, 561 F.2d 411 (1st Cir. 1977).. 21

Pell v. Procunier, 417 U.S. 817 (1974) .................... 16

Pennsylvania v. Finley, 481 U.S. 551 (1987) _... 6-7, 12-13

Price v. Johnston, 334 U.S. 266 (1948) 16

Procunier v. Martinez, 416 U.S. 396 (1974) .......... passim

Ross v. Moffit, 417 U.S. 600 (1974) 0 12,14

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

Re etn init a BL es a 24, 26

Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.

1986), cert. denied, 481 U.S. 1069 (1987) _...... 19, 25-26

Turman v. Romer, 729 F. Supp. 1276 (D. Colo.

TIED <shcitasaniihanbesteidhabisthalamenititieanied iain elene ieee. 19

Turner v. Safley, 482 U.S. 78 (1987) _........00 passim

United States v. MacCollom, 426 U.S. 317 (1976).. 13

Washington v. Harper, 494 U.S. 210 (1990) _.... 15, 18, 19

Washington v. James, 782 F.2d 1134 (2d Cir.

I erasable dan peat ahaa tinea 11

Wilkinson v. MacDougall, CIV 81-1397 (D. Ariz.

IG MRI clei 17

Williams v. Leeke, 584 F.2d 1336 (4th Cir. 1978),

cert. denied, 442 U.S. 911 (1979) ........0000000.. 9, 21

Wolff v. McDonnell, 418 U.S. 539 (1974) 5, 16

Zatko v. Rowland, 835 F. Supp. 1174 (N.D. Cal.

II sshediishieribinieiibaiiainirai chads aigela ee Tela ia ne 21-22

Miscellaneous

Douglas A. Blaze, Presumed Frivolous: Applica-

tion of Straight Pleading Requirements in Civil

Rights Litigation, 31 Wm. & Mary L. Rev. 935

PETITE \sbidlatadtarWiikicndubdeaeiiatiiusslensiuitiaitctesinicsatbinembndeieetsinens 13

vi

TABLE OF AUTHORITIES—Continued

Page

Federal Judicial Center, Recommended Procedures

for Handling Prisoner Civil Rights Cases in the

VC ..l ld, SE) 13-14

Wayne R. LaFave & Jerold H. Israel, Criminal

Procedure (2d ed. 1992) ...................---c--eeceessseneee 5, 8, 13

David McCord, Visions of Habeas, 1994 B.Y.U. L.

RR a a ae 13

Paul S. Mishkin, Federal Courts as State Reform-

ers, 35 Wash. & Lee L. Rev. 949 (1978) .............- 24

Report of the Federal Courts Study Committee

COD cncnncusrseesentnnintesnmemnitiianinnniauminiaigndanenpanadighn 13

Report of the Study Group on the Caseload of the

Supreme Court, 57 F.R.D. 573 (1972) ...........----- 14

er <n Se Ser nunerenes ere

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-1511

SAMUEL LEwIS, et al.,

™ Petitioners,

FLETCHER CASEY, JR., et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

NATIONAL CONFERENCE OF STATE LEGISLATURES,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

AND NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include

state, county, and municipal governments and offi-

cials throughout the United States. They have a

compelling interest in legal issues that affect state

and local governments.

2

This case presents an issue of continuing impor-

tance to amici: what must a State do to meet its

constitutional obligation to provide prisoners with

“access to the courts?” The courts below answered

that question by imposing extraordinarily detailed

and intrusive obligations on the Arizona Department

of Corrections, requiring, among other things, that

the Department (1) implement expansive prison law

library operating hours; (2) provide fully equipped

law libraries at every prison unit with a capacity

of 150 or more inmates; (3) provide full-time librar-

ians with law, library science, or paralegal degrees

at every prison law library; (4) offer an extensive

inmate legal assistant training program; (5) provide

a complete set of regional reporters for each law

library; and (6) provide trained legal assistants for

all inmates. This approach threatens both to impose

enormous burdens on amici—burdens that will be

especially difficult to carry at a time of tight budgets

—and to restrict the ability of prison administrators

to manage their institutions. Amici accordingly sub-

mit this brief to assist the Court in the resolution of

this case.’

SUMMARY OF ARGUMENT

A. The prisoner right of access to the courts rec-

ognized in Bounds v. Smith, 430 U.S. 817 (1977),

precludes States from imposing obstacles that would

effectively frustrate a prisoner seeking redress in

court. But Bounds manifestly did not hold, as the

courts below appear to have believed, that prisoners

must be assured effective presentation of their claims

1 The parties’ letters of consent to the filing of this brief

have been filed with the Clerk pursuant to this Court’s

Rule 37.3.

3

in court. Bounds itself made no such suggestion.

And the point is confirmed by the Court’s holding in

Murray v. Giarratano, 492 U.S. 1 (1989), that, even

where a particular group of inmates is unable to

make effective use of a law library, the State is under

no obligation to provide those prisoners with trained

legal assistance.

B. This principle leads to the conclusion that the

State satisfies its obligation under Bounds when it

provides prisoners access to an adequate law library

—and that the additional measures mandated by the

courts below are insupportable. Bounds repeatedly

indicated that the State must either offer a law

library or make available to prisoners assistance

from persons trained in the law. Bounds did not

Suggest that prison systems must provide special

legal services to illiterate or non-English speaking

prisoners, even though the Bounds Court surely was

aware of the difficulties faced by such inmates. And

the point is again confirmed by Murray, where—in

the face of a factual finding that death row inmates

were incapable of using lawbooks effectively—the

Court held that the State need not respond to the

particular handicaps of inmates by providing special

legal services.

C. The courts below erred in issuing a detailed

mandate governing the operation of prison libraries.

Their direction to the State failed to take into ac-

count the limited resources of the Arizona prison

system, the legitimate safety and penological con-

cerns of prison administrators, and the narrow judi-

cial role in prison administration—all considerations

that have been emphasized by this Court. Viewed in

the light of this Court’s holdings, the extraordinarily

intrusive order of the courts below dictating the con-

4

tents of the prison libraries, the degree of access to

the library stacks permitted prisoners, the time and

manner of access to the library, and the construction

of prison library facilities, cannot stand.

ARGUMENT

THE COURT OF APPEALS RECOGNIZED AN IM-

PROPERLY EXPANSIVE PRISONER RIGHT OF

ACCESS TO COURTS

A. Bounds Requires Only The Elimination Of Obstacles

That Would Frustrate Access To The Courts

This case involves the prisoner right of access to

t >» courts that was first expressly articulated in

Bounds v. Smith, 480 U.S. 817 (1977). Determining

the scope of that right presents unusual difficulties

because it has an extraordinarily hazy provenance;

the Court has failed to identify with specificity even

the provision of the Constitution on which it rests.

See Murray v. Giarratano, 492 U.S. 1, 11 & n.6

(1989). But the history and purposes of the right

of access suggest both its limits and its proper

application.

The decisions on which Bounds constructed the

right of access precluded States from imposing ob-

stacles that would effectively frustrate a prisoner

seeking redress in court. See generally Bounds, 430

U.S. at 822-824. Thus, the first decision in this line

held that “the state and its officers may not abridge

or impair [a prisoner’s] right to apply to a federal

court for a writ of habeas corpus” by exercising a

veto over the filing of a habeas petition. Ex Parte

Hull, 312 U.S. 546, 549 (1941) (emphasis added).

The Court subsequently held that a State could not

“effectively foreclose[] access” to the courts by re-

5

quiring payment of docket fees (Burns v. Ohio, 360

U.S. 252, 257 (1959)) or purchase of a transcript

that was essential for appeal. Griffin v. Illinois, 351

U.S. 12, 20 (1956). By the same token, the Court

held that inmates could not arbitrarily be precluded

from seeking the assistance of fellow prisoners with

regard to the preparation of habeas corpus applica-

tions and other legal filings. Johnson v. Avery, 393

U.S. 483, 489 (1969); Wolff v. McDonnell, 418 U.S.

539, 577-580 (1974).

In Bounds, the Court built on these decisions in

holding that prisons may be required to provide law

libraries or equivalent legal resources to prisoners,

explaining that States might have “to shoulder af-

firmative obligations to assure all prisoners mean-

ingful access to the courts.” 430 U.S. at 824.

Plainly, however, the Court in Bounds meant to do

no more than require that States “remove[] the bar-

riers to court access that imprisonment * * *

erect[s].” Hooks v. Wainwright, 775 F.2d 1433,

1436 (11th Cir. 1985), cert. denied, 479 U.S. 913

(1986). As the Court explained in some detail (430

U.S. at 825-827), use of legal materials is essential

to meaningful advocacy; yet a prisoner—unlike an

otherwise similarly situated person who is not in-

carcerated *—is denied access to those materials by

* Neither Bounds nor any other decision of this Court has

suggested that there is a right to any level of legal assistance

for individuals who are not imprisoned and who wish “to

pursue a fundamental constitutional claim in the courts (e.g.

a parolee who seeks through federal habeas corpus to chal-

lenge his conviction or through a civil rights action to present

a constitutional claim against the parole agency).” Wayne

R. LaFave & Jerold H. Israel, Criminal Procedure § 11.2(f)

(2d ed. 1992). See also DeShaney v. Winnebago Cty. Soc.

6

the State. Provision of a law library, like waiver of

a filing fee, therefore is necessary “to assure mean-

ingful access to inmates able to present their own

eases.” Id. at 824.

The courts below, however, proceeded from a dif-

ferent conception of the right described in Bounds.

They seemed to have it in mind, not only that pris-

oners must be guaranteed access to the courts, but

also that prisoners be assured an effective presenta-

tion of their claims in court. Bounds, however, made

no such suggestion. And the limited nature of

Bounds is confirmed by Murray. There, in the face

of a factual finding that prisoners on death row were

“‘ineapable of effectively using lawbooks to raise

their claims’” (492 U.S. at 5 (plurality opinion)

(citation omitted) ), the Court rejected the conten-

tion that the State was obligated to provide such

inmates “ ‘trained legal assistance.’” Ibid. (citation

omitted). Instead, the Court found it sufficient that

the prisoners be given “adequate and timely access

to a law library.” 7d. at 13.

Indeed, any other approach would embark the

courts on a journey down what then-Justice Rehn-

quist called “a slippery slope” (Bounds, 430 U.S. at

837 (Rehnquist, J., dissenting) ), which would make

the drawing of principled and manageable distinc-

tions impossible. After all, the Court has made clear,

both in Murray and in Pennsylvania v. Finley, 481

Servs. Dept., 489 U.S. 189, 196 (1989) (“[T]he Due Process

Clauses generally confer no affirmative right to government

aid, even where such aid may be necessary to secure life,

liberty, or property interests of which the government itself

may not deprive the individual.’’).

7

U.S. 551 (1987), that inmates seeking legal relief

generally are not entitled to state-financed counsel.

As a consequence, if States are required to do more

than place inmates on a par with unincarcerated

persons by providing for access to legal materials—

while not having to go so far as actually to assure

effective representation for inmates by offering coun-

sel—determining whether the State has done enough

in any given case will turn on an exercise of the

trial judge’s purely subjective judgment. Cf. Mis-

souri v. Jenkins, 63 U.S.L.W. 4486, 4494 (U.S. June

12, 1995) (rejecting remedy in part because it was

not “susceptible to any objective limitation”). We

proceed to consider the holding below in light of these

considerations.

B. A State That Provides An Adequate Prison Law

Library Need Not Also Offer Specialized Legal

Services

1. The limited scope of the right recognized in

Bounds necessarily leads to the conclusion that the

State satisfies its constitutional obligation when it

offers an inmate access to an adequate law library—

and that the additional measures mandated by the

courts below are insupportable.* As the Court put

* In this case, the specific elements of the order upheld below

that go beyond the core requirement of Bounds include: (1)

the requirement that the State hire full-time, professionally

trained librarians with law, library science, or paralegal

degrees for every law library (see Pet. App. 66a-67a); (2)

the requirement that tle State provide trained inmate legal

assistants—-including bilingual legal assistants—to all inmates,

even if the inmates are literate and have physical access to a

law library (id. at 69a-7la); and (3) the requirement that

the State provide a legal assistant training program, includ-

ing a legal research course approximately 60 hours in length,

to be taught by lawyers, !aw students, or trained paralegals

at each law library twice a year, ad infinitum. Id. at 71a-72a.

8

it in Bounds, “the fundamental constitutional right

of access to the courts requires prison authorities to

assist inmates in the preparation and filing of mean-

ingful legal papers by providing prisoners with ade-

quate law libraries or adequate assistance from per-

sons trained in the law.” 430 U.S. at 828 (emphasis

added). Not only did the Court use this disjunctive

formulation no fewer than five times in Bounds (id.

at 825, 828-829), it also went on to add that “ade-

quate law libraries are one constitutionally acceptable

method to assure meaningful access to the courts.”

Id. at 830 (emphasis added).

As this language suggests, the Bounds principle

does not—as the court below believed (see Pet. App.

7a-9a)—mandate special legal services for illiterate

and non-English speaking prisoners. The Bounds

Court surely was aware of the difficulties faced by

such prisoners when it declared an adequate law

library sufficient to meet the States’ obligation of

assistance. See Hooks, 775 F.2d at 1436; LaFave &

Israel, supra, at § 11.2(f). Indeed, that very prob-

lem was specifically acknowledged in an earlier “ac-

cess to courts” case. See Johnson, 393 U.S. at 484.

The Court nevertheless indicated that States are

obligated only to mitigate the effects of incarceration,

not all pre-existing problems of individual prisoners

that would affect their capacity to exercise their

legal rights. See LaFave & Israel, supra, at § 11.2(f)

(noting that the access right would not necessarily

require the state to “offset the limitations of the in-

dividual * * * that presumably would restrict his

capacity to exercise his right of access even if he

were not incarcerated”’) .*

4 See Hooks, 775 F.2d at 1436-1437; Bee v. Utah State

Prison, 823 F.2d 397, 398 (10th Cir. 1987); see also Morrow

9

This conclusion is confirmed by Murray. As noted

above, in that case the district court made a specific

factual finding that the special burdens of death row

inmates rendered them “ ‘incapable of effectively

using lawbooks to raise their claims’”’; as a conse-

quence, the district court held access to an adequate

law library insufficient to fulfill the State’s burden

under Bounds. See Murray, 492 U.S. at 5 (plurality

opinion) (citation omitted). This Court, however,

refused to extend Bounds to support that result,

holding instead that the State’s policy of either allow-

ing death row inmates time in the prison law library

or permitting them to have law books in their cells

was constitutionally adequate. Jd. at 5, 12. In so

doing, the Court rejected a reading of Bounds that

would have required state prison authorities to op-

erate by different rules depending upon the facts of

each case, stating:

[t]reating such matters as “factual findings,”

presumably subject only to review under the

“clearly-erroneous” standard, would permit a

different constitutional rule to apply in a differ-

ent State if the district judge hearing that claim

reached different conclusions. Our cases involv-

ing the right to counsel have never taken this

tack; they have been categorical holdings as to

v. Harwell, 768 F.2d 619, 623 (5th Cir. 1985) (“[ Bounds]

foreclosed the question of the practical utility of a library,

concluding that access to a library is access to the courts.”) ;

Williams v. Leeke, 584 F.2d 1336, 1341 (4th Cir. 1978)

(Hall, J., concurring in part and dissenting in part) (“The

state’s obligation considered in Bounds is an institutional one

which is fulfilled as to all prisoners—even illiterate prisoners

—by making legal research materials generally available to

inmates * * *.”), cert. denied, 442 U.S. 911 (1979).

10

what the Constitution requires with respect to a

particular stage of a criminal proceeding in

general.

Id. at 12.

That holding dictates the outcome here. The State

in Murray was not obligated to respond to the par-

ticular handicaps of inmates under a capital sentence

by providing additional legal assistance, notwith-

standing a factual finding that those handicaps ren-

dered the inmates incapable of using lawbooks and

the prison library effectively. There is no reason why

the handicaps of illiterate or non-English speaking

prisoners should dictate a different result in this

ease. To the contrary, it would be perverse to hold

that prisoners with limitations unrelated to incar-

ceration (such as illiteracy) are entitled to a greater

right of access to the courts than are death row

inmates whose limitations are a consequence of the

special burdens resulting from their sentences.

It may be added that the expansion upon Bounds

worked by the courts below is not necessary to pro-

tect a meaningful right of access to the courts for

illiterate or non-English speaking prisoners. Those

inmates still have a constitutional right to seek the

legal aid of their fellow literate inmates. See Bounds,

430 U.S. at 824 & n.10 (noting Wolff’s holding that

illiterate inmates have a right to assistance from

literate inmates even though an adequate law library

is present) ; Johnson, 393 U.S. at 490. Even though

an adequate law library may not directly benefit

illiterate or non-English speaking prisoners, it does

help them indirectly by improving the quality of as-

sistance from literate inmates. Additionally, illit-

erate prisoners may, with assistance from a literate

wT

|

11

inmate if necessary, seek the assistance of counsel.’

This puts the illiterate or non-English speaking pris-

oner on an equal footing with similarly situated

uninearcerated individuals, who also would have to

seek legal aid or help from English-literate associates

to gain access to the courts.

2. In addition, requiring the State to expend

scarce legal resources by providing legal assistance

beyond an adequate law library will not necessarily

inure to the benefit of prisoners. As this Court has

often noted, the resources that States may devote to

legal services (and to prison systems generally) are

limited. See, e.g., Murray, 492 U.S. at 11 (plurality

opinion) ; id. at 18 (O’Connor, J., concurring). The

expense of instituting the programs required by the

lower courts in this case would represent a consider-

able strain on those resources, and might well require

a reduction in the expenditures dedicated to provid-

ing prisoners legal assistance at trial and during the

direct appeal of their convictions—the stages of the

process that are crucial in a criminal proceeding.

* The Court has held that the right of “access to courts”

necessarily includes a right to seek legal assistance.

[I}nmates must have a reasonable opportunity to seek

and receive the assistance of attorneys. Regulations and

practices that unjustifiably obstruct the availability of

professional representation of other aspects of the right

of access to the courts are invalid.

Procunier v. Martinez, 416 U.S. 396, 419 (1974). This right

to seek legal assistance has been used to strike down regula-

tions and practices that prohibit or unreasonably interfere

with the solicitation of legal assistance by mail. See Brewer

v. Wilkinson, 3 F.3d 816 (5th Cir. 1993), cert. denied, 114

S.Ct. 1081 (1994); Foster v. Basham, 932 F.2d 732 (8th Cir.

1991); Washington v. James, 782 F.2d 1134 (2d Cir. 1986);

Minnesota Civil Liberties Union v. Schoen, 448 F. Supp. 960

(D. Minn. 1977).

12

The Court has recognized the danger of ordering ac-

commodations of asserted constitutional rights with-

out taking these sorts of trade-offs into account. “In

the necessarily closed environient of the correctional

institution, few changes will have no ramifications

on the liberty of others or on the use of the prison’s

limited resources * * *.” Turner v. Safley, 482 U.S.

78, 90 (1987).

A shift of scarce resources from the trial and

direct appeal stages of a criminal proceeding to as-

sistance in filing post-conviction collateral attacks

would hardly redound to the advantage of prisoners.

The trial provides the criminal defendant his prin-

cipal opportunity to avoid incarceration and is of

utmost importance in the criminal justice system.

See Ross v. Moffit, 417 U.S. 600, 611 (1974). Of

secondary but considerable moment is the direct ap-

peal of a conviction, which “is the primary avenue

for review of a conviction or sentence * * *.” Bare-

foot v. Estelle, 463 U.S. 880, 887 (1993). The right

to counsel for an initial appeal from the judgment

or sentence of the trial court reflects the importance

of this stage of the criminal proceeding. See Douglas

v. California, 372 U.S. 353 (1963). In contrast, the

role of habeas corpus proceedings is secondary and

limited. See Barefoot, 463 U.S. at 887; Murray, 492

U.S. at 10 (plurality opinion). Accordingly, this

Court concluded in Finley that there was no federal

constitutional right to counsel for post-conviction col-

lateral proceedings:

Posteonviction relief is even further removed

from the criminal trial than is discretionary di-

rect review. It is not part of the criminal pro-

ceeding itself, and it is in fact considered to be

civil in nature. See Fay v. Noia, 372 U.S. 391,

iiss ce - .

13

423-424 (1963). * * * States have no obligation

to provide this avenue of relief, cf. United States

v. MacCollom, 426 U.S. 317, 323 (1976) (plu-

rality opinion), and when they do, the funda-

mental fairness mandated by the Due Process

Clause does not require that the State supply a

lawyer as well.

Id. at 556-557; see also Murray, 492 U.S. at 10 (plu-

rality opinion).

Yet the decision below would require States to use

scarce resources in providing legal aid to assist pris-

oners pursuing post-conviction relief. This would

preclude the States from making the sensible policy

decision to concentrate their resources at the trial

and direct appeal stages of criminal proceedings

where “[c]lapable lawyering * * * would mean

fewer colorable claims of ineffective assistance of

counsel to be litigated on collateral attack.” Murray,

492 U.S. at 11 (plurality opinion).* While the pro-

*In addition to the secondary nature of habeas corpus

actions, it is useful to note that habeas petitions most often

are unsuccessful. “Habeas relief * * * typically has been

granted in less than 4% of all petitions filed and an even

smaller percentage of petitioners gain release from custody.”

LaFave & Israel, supra, § 28.2; see also David McCord,

Visions of Habeas, 1994 B.Y.U. L. Rev. 735, 768 (discussing

problem of large volume of frivolous habeas actions). Pris-

oner civil rights actions also are rarely successful. See

Procunier v. Martinez, 416 U.S. at 405 n.9 (noting problem

of frivolous prisoner claims); Douglas A. Blaze, Presumed

Frivolous: Application of Straight Pleading Requirements

in Civil Rights Litigation, 31 Wm. & Mary L. Rev. 935, 935-

938 (1990) (discussing problem of frivolous prisoner civil

rights claims); Report of the Federal Courts Study Commit-

tee 48-51 (1990) (proposing new procedure to deal with

prisoner civil rights cases, which represented 11 percent of

all civil filings in 1989); Federal Judicial Center, Recom-

14

vision of legal assistance to prisoners pursuing post-

conviction relief or civil actions might be a good idea

in the best of all possible worlds, that does not mean

that it should be constitutionally mandated. See Ross,

417 U.S. at 618. The difficult policy questions con-

cerning the allocation of limited legal resources

should be left to the state legislative and executive

branches, which are far better equipped to weigh the

advantages and disadvantages of various policies

than are the courts. See Turner, 482 U.S. at 84;

Procunier v. Martinez, 416 U.S. 396, 405 (1974);

Murray, 492 U.S. at 11 (plurality opinion); id. at

13 (O’Connor, J., concurring).

C. The Lower Courts’ Detailed Mandate Regarding The

Contents Of And Access To Prison Libraries Is

Insupportable

Allowing prisoners access to a law library thus is

sufficient to satisfy the requirements of Bounds, pro-

vided that the library is “adequate” (430 U.S. at

828) and that the degree of access is “meaningful.”

Id. at 823, 825. To require an adequate law library,

however, is not to require a perfect or superior one.

See Procunier v. Martinez, 416 U.S. at 420 (prison

not required to adopt every proposal that facilitates

prisoner access to the courts) ; Lindquist v. Idaho Bd.

of Corrections, 776 F.2d 851, 856 (9th Cir. 1985).

By the same token, meaningful access does not require

mended Procedures for Handling Prisoner Civil Rights Cases

in the Federal Courts 9-11 (1980); Report of the Study Group

on the Caseload of the Supreme Court, 57 F.R.D. 573, 587

(1972). While this is not to gainsay the importance of the

right of access to the courts, it does suggest that increasing

the level of state resources devoted to such claims—a step

that necessarily will be taken at the expense of other state

expenditures—is not a sensible policy.

o- a

15

that prisoners be given unlimited use of library re-

sources. See Campbell v. Miller, 787 F.2d 217, 226

(7th Cir.), cert. denied, 479 U.S. 1019 (1986);

Harrell v. Keohane, 621 F.2d 1059 (10th Cir. 1980)

(per curiam). Instead, it is enough that the re-

sources made available to prisoners offer them a rea-

sonable opportunity to “prepare petitions for judicial

relief.” Murray, 492 U.S. at 11 (plurality opinion).

At the same time, implementation of this principle

requires that courts take into account competing con-

siderations: the limited resources of state prison

systems (see Murray, 492 U.S. at 11 (plurality

opinion); Turner, 482 U.S. at 90), the safety and

penological concerns of prison administrators (see

Washington v. Harper, 494 U.S. 210, 223 (1990);

Hewitt v. Helms, 459 U.S. 460, 473 (1983)), and a

scrupulous attention to this Court’s explanation of

the narrow judicial role in prison administration:

[C]Jourts have, in the name of the Constitution,

become increasingly enmeshed in the minutiae

of prison operations. Judges, after all, are

human. They, no less than others in our society,

have a natural tendency to believe that their

individual solutions to often intractable problems

are better and more workable than those of the

persons who are actually charged with and

trained in the running of the particular institu-

tion under examination. But under the Constitu-

tion, the first question to be answered is not

whose plan is best, but in what branch of the

Government is lodged the authority to initially

devise the plan. * * * The wide range of “judg-

ment calls” that meet constitutional and statu-

tory requirements are confided to officials outside

of the Judicial Branch of Government.

Bell v. Wolfish, 441 U.S. 520, 562 (1979); see also

Block v. Rutherford, 468 U.S. 576, 588 (1984).

16

It is well understood that “[{]]awful incarceration

brings about the necessary withdrawal or limitation

of many privileges and rights, a retraction justified

by the considerations underlying our penal system.”

Bell, 441 U.S. at 545-546 (citing Price v. Johnston,

334 U.S. 266, 285 (1948); Jones v. North Carolina

Prisoners’ Labor Union, 433 U.S. 119, 125 (1977);

Wolff, 418 U.S. at 555; Pell v. Procunier, 417 U.S.

817, 822 (1974)). Indeed, in Turner the Court made

clear that prison administrators must be free to run

their institutions without interference from the

courts so long as their policies are rationally related

to the safety and economic concerns of the prison

(482 U.S. at 89) and do not unduly foreclose “other

avenues” for the exercise of prisoner rights. /d. at

90. This is no less true of the right of access to the

courts. Viewed in light of this principle, the order

upheld by the court below reveals a consistent mis-

application of the “meaningful access” requirement.

1. Contents of the Law Library. Arizona should

not be required, as ordered by the courts below, to

provide the Pacific Reporter in its prisons’ law

libraries to meet the constitutional requirement that

those libraries be “adequate.” To be sure, an ade-

quate prison law library should contain the basic

resources necessary to conduct legal research. But

it does not follow that every resource that could be

useful in a legal research project must be on the

shelves of every prison law library. “[P]rison ad-

ministrators are not required to adopt every proposal

that may be thought to facilitate prisoner access to

the courts.” Procunier v. Martinez, 416 U.S. at 420.

Here, a requirement that the Pacific Reporter be

provided in Arizona’s prison libraries cannot be justi-

fied on the grounds that it is a basic resource that

17

is necessary to conduct legal research.’ Indeed, an-

other panel of the Ninth Circuit recognized the lesser

importance of regional reporters in rejecting an argu-

ment that they had to be included in Idaho prison li-

braries that already provided the Idaho state reporter:

“the Prison need not provide its inmates with a library

that results in the best possible access to the courts.

Rather, the Prison must provide its inmates with a

library that meets minimum constitutional stand-

ards.” Lindquist, 776 F.2d at 856 (emphasis added).

Notably, the plan that was found constitutional in

Bounds did not include the regional reporter in its

law library inventory. 430 U.S. at 819-820 n.4.

2. Access to Library Stacks. The order upheld by

the Ninth Circuit requires that all prisoners be al-

lowed direct access to the library stacks, unless

prison officials can first document that such access

will pose an actual security risk. Pet. App. 67a-68a.

The Bounds “meaningful access” standard cannot

justify this requirement. The inconvenience prisoners

may experience from denial of direct access to the

library stacks is a minimal infringement on their

7 As a result of an earlier district court order, Wilkinson

v. McDougall, CIV 81-1397 (D. Ariz. Jan. 5, 1984), all 33

of Arizona’s state prison law libraries include: the United

States Code Annotated; Supreme Court Reporter; Federal

Reporter Second; Federal Supplement; Shepards U.S. Cita-

tions; Shepards Federal Citations; Local Rules for the Federal

District Court; Modern Federal Practice Digest; Federal

Practice Digest (Second); Arizona Code Annotated; Arizona

Reports; Shepards Arizona Citations; Arizona Appeals Re-

ports; Arizona Law-of-Evidence (Udall); ADOC Policy Man-

ual; 108 Institutional Management Procedures; Federal Prac-

tice and Procedure (Wright, Miller, & Cooper); Corpus Juris

Secundum; and Arizona Digest.

18

right of “meaningful” access and plainly is justified

by competing safety and administrative concerns.

A restriction on direct prisoner access to the stacks

is necessary to serve prison security. See Harper,

494 U.S. at 223; Helms, 459 U.S. at 473 (safety is

a “fundamental responsibility” of prison administra-

tion). As the Court has recognized, hardback books

are an especially effective vehicle for smuggling con-

traband. Bell, 441 U.S. at 549. It seems not only

reasonable but also prudent to deny prisoners a com-

mon ground to stash and exchange forbidden mate-

rial. Books also are an excellent place for inmates

to conceal hidden messages to one another. Again,

the Court has recognized the State’s legitimate secu-

rity interest in monitoring and controlling inmate

communications. Turner, 482 U.S. at 91-92. Addi-

tionally, prisons must carefully regulate the use of

books to prevent vandalism and theft. In light of

these obvious and legitimate security and administra-

tive justifications, it is reasonable to restrict direct

inmate access to library stacks.

These restrictions are acceptable, of course, be-

cause “other avenues” remain available for prisoners

to gain access to legal materials. A prison may, for

example, use a “call” system by which a prisoner

with access to a list of the library’s holdings requests

that a librarian retrieve particular books from the

stacks for him. Under this approach, when the pris-

oner is finished with the source he turns it in and

requests others. Other than the minimal inconven-

jence of waiting for the librarian to retrieve the

source, it is difficult to see how this system would

be any less useful than direct access to the library

collection. Furthermore, while prohibiting prisoners

from browsing through the stacks of the prison law

19

library, this system would still allow prisoners to

browse through legal materials to follow leads from

one source to another. See Toussaint v. McCarthy,

801 F.2d 1080, 1110 (9th Cir. 1986), cert. denied,

481 U.S. 1069 (1987).

For prisoners who are greater security risks, more

restrictive practices would be permissible. One

method, for example, is a “paging”? system whereby

prisoners who are not allowed to visit the law library

request legal materials or photocopies of those mate-

rials that are delivered to their cells." While this

might result in delays between request and receipt of a

book, such inconvenience, standing alone, hardly

amounts to a denial of access to the courts. Cf.

Bounds, 430 U.S. at 819 (under approved plan in-

mates would have to wait between three and four

weeks to do one day of legal research). This Court

has upheld safety practices that constitute far more

extensive intrusions on the rights of inmates than

the inconvenience of having to wait for particular

legal sources. See, e.g., Harper, 494 U.S. at 227;

Bell, 441 U.S. at 558-560.

The requirement that prison officials show a docu-

mented security risk before denying a prisoner direct

8 Of course, this would assume that the prisoners have some

reference materials or other legal assistance (such as inmate

paralegals) to help them to determine which materials they

should request. Similar systems have been upheld in Campbell

v. Miller, 787 F.2d 217, 227-228 (7th Cir. 1986); Cosby v.

Purkett, 782 F. Supp. 1824 (E.D. Mo. 1992); and Turman

v. Romer 729 F. Supp. 1276 (D. Colo. 1990). But see

Toussaint, 801 F.2d at 1108-1110; Corgain v. Miller, 708 F.2d

1241, 1250 (7th Cir. 1983) (paging system requiring exact

citations is inadequate without references for deriving cita-

tions); Kaiser v. Sacramento, 780 F. Supp. 1309, 1316 (E.D.

Cal. 1991).

20

access to the library stacks (Pet. App. 68a) also is

unjustified. ‘In the volatile atmosphere of a prison,

an inmate easily may constitute an unacceptable

threat to the safety of other prisoners and guards

even if he himself has committed no misconduct;

rumor, reputation, and even more imponderable

factors may suffice to spark potentially disastrous

incidents.” Helms, 459 U.S. at 474. Requiring docu-

mentation of a security risk invites a potential chal-

lenge every time the prison administration denies a

prisoner direct law library access. If administrators

must carefully document every risk to protect them-

selves against legal challenge, they will face a situa-

tion where “complying with * * * marginally helpful

procedural requirements” would interfere with the

efficient and safe management of the institution. /d.

at 474 n.7. See Turner, 482 U.S. at 89.

3. Time, Place, and Manner of Access. The deci-

sion below also improperly infringes on the ability of

prison administrators to regulate the time, place, and

manner in which inmates gain access to and use the

prison law library.’ “A detention facility is a unique

place fraught with serious security dangers” (Bell,

441 U.S. at 559), which necessarily requires that

“prison officials have broad administrative and dis-

cretionary authority over the institutions they man-

® Among other things, the district court: (1) set, within

limits, the operating hours and days for the law libraries,

without regard to actual use; (2) dictated where the prisoners

may sit in the libraries; (3) set the precise procedure for

the prisons’ response to library access requests; (4) set

procedures for removing prisoners who create disturbances

from the law library; (5) prohibited the reasonable restraint

of prisoners in the law library; and (6) controlled the noise

level in the library. Pet. App. 65a-68a.

ee

she —-

21

age.” Helms, 459 U.S. at 467. See Meachum v.

Fano, 427 U.S. 215, 229 (1976) (‘The federal courts

do not sit to supervise state prisons * * *.”’). While

limits on precise hours of library operation, the im-

plementation of library security measures, and the

like may create inconvenience for particular inmates,

it is difficult to see these as anything more than de

minimis restrictions that do not warrant court super-

vision. Cf. Meachum, 427 U.S. at 225.”

The related requirement that prisoners be provided

with at least ten hours of access to the law library

each week also is impermissibly intrusive. We agree

that the time allotted for a prisoner to use the library

cannot be so low as to deny “meaningful access.” No

court looking at the issue, however, has suggested

that the minimum threshold for meeting the “mean-

ingful access” standard is anywhere near ten hours

of access to the prison law library a week. See Cruz

v. Hauck, 627 F.2d 710, 720 (5th Cir. 1980) (ex-

pressing reservations about adequacy of two to three

hours a week of access); Williams v. Leeke, 584 F.2d

1336, 1340 (4th Cir. 1978) (three forty-five minute

intervals a week inadequate); Nadea v. Helgemoe,

561 F.2d 411, 418 (1st Cir. 1977) (one hour per

week inadequate); Zatko v. Rowland, 835 F. Supp.

1° This is not to say that courts should be foreclosed from

ordering a prison system to provide prisoners with “meaning-

ful access” to a law library. When the time provided for

prisoner use of the library is “meaningful,” however, the

courts have no business involving themselves in the minute

details of the time of day such access is scheduled, the seating

arrangements of prisoners using the library, and the proce-

dures used to process inmate requests for library time. These

administrative matters involve precisely the types of day-to-

day decisions that should be left to local authorities. See Bell,

441 U.S. at 563.

22

1174, 1178 (N.D. Cal. 1993) (holding a plan pro-

viding access of two hours a week, with access of

four hours a week for inmates with impending court

deadlines, reasonable as a matter of law). In fact,

the approach taken by the courts below requires far

more prisoner time in the law library than the plan

approved in Bounds itself. See 430 U.S. at 819 (pro-

viding for one full work day at a law library every

three to four weeks). Beyond the minimum require-

ments of Bounds—and absent a showing that prison-

ers are unable to make effective and meaningful use

of the library in the time allotted—it should be up

to the prison administrators, not the courts, to weigh

the costs and benefits that would attend a shift of

prison resources from other penological concerns to

providing extra library hours.

4. The Requirement of Additional Prison Librar-

ies. The order upheld by the court of appeals re-

quires, with some exceptions, that Arizona provide

fully equipped law libraries for facilities with a popu-

lation or capacity of 150 or more. Pet. App. 61a.

Bounds cannot support this mandate. So long as the

State is able to provide prisoners with “meaningful

access” to the courts, it should be free to adopt

methods other than the expensive construction of new

library facilities. The State could, for example, adopt

a plan by which prisoners without a law library in

their facility are bused to other facilities to do legal

research. That is precisely the type of plan found

adequate in Bounds. 430 U.S. at 819. Alternatively,

the State could, in lieu of a full law library, provide

these prisoners with some form of trained legal assist-

ance or a limited law library supplemented with legal

materials borrowed from elsewhere. See Campbell

23

v. Miller, 787 F.2d at 228-229 (approving a similar

plan for high-security prisoners not allowed access to

the prison law library). If a court finds that.prison-

ers in facilities without law libraries are not receiv-

ing “meaningful access” to the courts, it should allow

the State to exercise this wide discretion in creating

an access plan, rather than foreclosing innovative

solutions that could take into account both the pris-

oner’s need for “meaningful access” and the limited

resources of the state prison system. Cf. Bounds, 430

U.S. at 819.

D. The Decisions Below Exceeded The Proper Judicial

Role

As the discussion above suggests, the courts below

involved themselves in the management of the Ari-

zona prison system at a level of detail and with a

degree of intrusiveness that is quite extraordinary.

But they did so entirely without justification. While

the district court noted imperfections in Arizona’s

program (see Pet. App. 19a-41a), the courts below

expressly declined to ask the inmates to demonstrate

that they were in fact denied meaningful access to

the courts. See id. at 5a. Yet this Court repeatedly

has admonished the federal judiciary to respect the

limits of the injunctive remedy and to fashion relief

that is proportional to any constitutional violation.”

11 See generally Missouri v. Jenkins, 638 U.S.L.W. 4486,

4491 (U.S. June 12, 1995) (nature of remedy is to be deter-

mined by “nature and scope of the constitutional violation” )

(citing Milliken v. Bradley, 433 U.S. 267, 280-281 (1977));

Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[T]he

scope of relief is dictated by the extent of the violation

established.”’); Bell, 441 U.S. at 562 (injunctive power should

be invoked to remedy only bona fide constitutional violations,

24

Although the court of appeals dutifully quoted this

principle (id. at 13a), it made no effort to implement

it in practice.

Just last term, in Missouri v. Jenkins, 63 U.S.L.W.

4486 (U.S. June 12, 1995), the Court reaffirmed the

limits of the federal judiciary’s power to order in-

junctive relief. Recognizing that “local autonomy of

school districts is a vital national tradition” (id. at

4494), the Court refused to endorse an approach that

would have allowed the district court to take over

the management of local schools to increase their

“desegregative attractiveness” (ibid.) and facilitate

the creation of a school system “with facilities and

opportunities not available anywhere else in the coun-

try.” Id. at 4488. Instead, the injunctive power of

the district court was limited to remedying the spe-

cific constitutional violation at issue.

Like school administration, management of the

local prison sysiem is of “acute interest to the States.”

Meachum, 427 U.S. at 229. “Running a prison is an

inordinately difficult undertaking that requires exper-

tise, planning, and the commitment of resources, all

of which are peculiarly within the province of the

legislative and executive branches of the govern-

not to impose judicial policy preferences on the States);

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 417 (1977);

Keyes v. School Dist. No. 1, Denver, Colorado, 413 U.S. 189,

213 (1973) (system-wide remedy only appropriate if system-

wide violation); Swann v. Charlotte-Mecklenburg Bd. of

Educ., 402 U.S. 1, 16 (1971) (“Remedial judicial authority

does not put judges automatically in the shoes of school

authorities whose powers are plenary.’”); Paul S. Mishkin,

Federal Courts as State Reformers, 35 Wash. & Lee L. Rev.

949 (1978).

25

ment.” Turner, 482 U.S. at 84. Thus, when state

prison systems are involved the federal courts should

be especially careful in respecting their limited role.

See Procunier v. Martinez, 416 U.S. at 405; see also

Jenkins, 63 U.S.L.W. at 4501-4502 (Thomas, J., con-

curring). Cf. Bounds, 430 U.S. at 832-833 (praising

district court for respecting limits on its role by al-

lowing the State to fashion its own remedy despite

the court’s expressed preference for alternative ap-

proaches). But the order in question in this case

embodies the antithesis of that limited judicial role.

It involves a serious intrusion into day-to-day man-

agement of the Arizona prison system, is overreach-

ing at almost every juncture, and represents an at-

tempt to create an ideal prisoner legal aid system.

However desirable this might be as a matter of pol-

icy, such a paternalistic “approach should play no

part in traditional constitutional adjudication.”

Murray, 492 U.S. at 11 (plurality opinion).

While the court below acknowledged the intrusive-

ness of its remedy, it suggested that ‘“‘a federal

court may order relief that the Constitution would

not of its own force initially require if such relief

is necessary to remedy .. . [that] violation.’” Pet.

App. 13a (citation omitted). But whatever its valid-

ity in other circumstances, that principle has no ap-

plication here."* Even if extra-constitutional relief

12 Tronically, the decision that the Ninth Circuit cites for

this principle went on to state:

However, our goal is to cure only constitutional viola-

tions. The commission of a federal judge is not a ‘gen-

eral assignment to go about doing good.’ Accordingly,

injunctive restraints that exceed constitutional minima

must be narrowly tailored to prevent repetition of proved

26

were justified in some instances, it would not be

necessary to remedy any violation in this case. Un-

like an unconstitutionally segregated school system,

where the social effects of the wrong vastly complicate

the remedy (see Swann, 402 U.S. at 6), termination

of a denial of access to the courts provides a complete

remedy for the constitutional injury. Thus, in this

ease, there is no rationale for allowing injunctive

relief that requires more than the Constitution dic-

tates. Accordingly, this Court should find the injunc-

tion upheld by the court below to be impermissibly

overbroad.

CONCLUSION

The judgment of the United States Court of Ap-

peals for the Ninth Circuit should be reversed.

Respectfully submitted,

CHARLES ROTHFELD RICHARD RUDA *

MAYER, BROWN & PLATT Chief Counsel

2000 Pennsylvania Ave., N.W. STATE AND LOCAL LEGAL

Washington, D.C. 20006 CENTER

(202) 778-0616 444 North Capitol St., N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

August 14, 1995 Amici Curiae

constitutional violations, and must not intrude unneces-

sarily on state functions.

Toussaint, 801 F.2d at 1087 (citations omitted).

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