Petitioners Brief — Shaw v. Murphy

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No. 99-1613

In The

Supreme Court of the United States

* —

ROBERT SHAW; LARRY BEARLEY;

MICHAEL MAHONEY; MYRON BEESON;

AND RICHARD S. DAY,

Petitioners,

KEVIN MURPHY,

Respondent.

-¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR PETITIONERS

JoserpH P. Mazurek

Attorney General

Davip L. OHLeER*

DIANA LEIBINGER-KOCH

Special Assistant

Attorneys General

1539 Eleventh Avenue

P.O. Box 201301

Helena, MT 59620-1301

(406) 444-5682

Counsel for Petitioners

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

—_ - -—-

QUESTION PRESENTED

Does the First Amendment to the United States Con-

stitution grant a state prison inmate an independent and

freestanding right to assist another state prison inmate

with a pending court case even if the State supplies other

forms of legal assistance to the prison inmate?

PARTIES

All parties are listed in the caption.

e+.

TABLE OF CONTENTS

Page

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OPINIONS BELOW............. VeeeeEE den cencenes |

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CONSTITUTIONAL AND STATUTORY PROVI-

Cece E she cseseescoccescccccess l

STATEMENT OF THE CASE........... Ppetedseese 2

I. FACTUAL BACKGROUND.................... 3

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SUMMARY OF ARGUMENT.....................5. 17

ST PUCSEREEGEGSGGSGSSeeséceccecccccccesce 20

Il. THE COURT OF APPEALS ERRED IN CON-

CLUDING THAT “LEGAL ADVICE” CON-

VEYED FROM ONE INMATE TO ANOTHER

INMATE ENJOYS PROTECTED STATUS

UNDER THE SPEECH CLAUSE IN THE FIRST

TPE eECECSSSCesccesccccecececces: 21

A. This Court's Prisoner Mail Decisions Estab-

lish That Prisons May Prohibit, Censor, and

Punish Under “Neutral” Criteria Inmate-to-

Inmate Mail Without Violating the First

Amendment's Speech Clause.............. 21

B. Turner Establishes That the Speech Clause

Does Not Specially Protect Inmate-to-

Inmate Mail Purporting to Contain “Legal

Advice” From Application of Disciplinary

Policy Which Admittedly May Be Applied

to Communications With Other Content... 28

TABLE OF CONTENTS - Continued

Page

Il. THE COURT OF APPEALS’ RELIANCE ON

FIRST AMENDMENT ASSOCIATIONAL

RIGHTS FOR ITS “LEGAL ADVICE” EXCEP-

TION TO THE APPLICATION OF THE DISCI-

PLINARY POLICY CANNOT BE RECONCILED

SOUND PN 4h 6 kc dec antcvaccueeadeneemnnas 37

lil. THE COURT’S ACCESS-TO-COURTS DOC-

TRINE DEFINES THE SCOPE OF AN

INMATE’S CONSTITUTIONAL ENTITLEMENT

TO LEGAL ASSISTANCE FROM A FELLOW

UNOS 644 b6Kbe cad Kees cnkecanviieddessaene 41

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases

Bell v. Wolfish, 441 U.S. 520 (1979) ............... 24, 28

Block v. Rutherford, 468 U.S. 576 (1984) .............. 24

Bounds v. Smith, 430 U.S. 817 (1977).......... 41, 42, 44

Hudson v. Palmer, 468 U.S. 517 (1984) ............... 43

Johnson v. Avery, 393 U.S. 483 (1969) ..19, 32, 41, 42, 44

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

Cae Ws Be Se Pa dc cdnvindsnnnnducsteanbenes passim

Lewis v. Casey, 518 US. 343 (1996)... 19, 20, 41, 42, 43, 44

McDonald v. Smith, 472 U.S. 479 (1985).............. 43

NAACP v. Button, 371 U.S. 415 (1963)............... 37

O’Lone v. Estate of Shabazz, 482 U.S. 342

Sed ckscencecnasenedncesbaatenneeuesunus 25, 26, 36

Owens v. Rush, 654 F.2d 1370 (10th Cir. 1981)........ 37

Pell v. Procunier, 417 U.S. 817 (1974) ...... 3, 20, 23, 40

Procunier v. Martinez, 416 U.S. 396 (1974)....21, 22, 23, 26

Rizzo v. Dawson, 778 F.2d 527 (9th Cir.

Pee hcadecnenccandcadesdecesntévensens 15, 20, 37, 38

Safley v. Turner, 777 F.2d 1307 (8th Cir. 1985), aff'd

in part & rev'd in part, 482 U.S. 78 (1987) ......... 30

Safley v. Turner, 586 F. Supp. 589 (W.D. Mo. 1984),

aff'd, 777 F.2d 1307 (8th Cir. 1985), aff'd in part &

rev'd in part, 482 U.S. 78 (1987)................ 29, 30

Sandin v. Conner, 515 U.S. 472 (1995)................ 33

State v. Shadwell, 57 P. 281 (Mont. 1899).............35

TABLE OF AUTHORITIES - Continued

Page

Superintendent v. Hill, 472 U.S. 445 (1985) ........... 12

Thornburgh v. Abbott, 490 U.S. 401 (1989)..... 17, 26, 27

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

Walters v. National Ass'n of Radiation Survivors, 473

ek SY EE sh nx dhcanavdsesabuscontedbacaensas 44

Feorrat Mareriats

United States Constitution

PN: Wa 06866 aioe ens ccdinanuvcas sede casedans passim

, Sa oe xn 6rdbinevstcanvdendeducseetenéess 43

ras Covcdeeeectauessewesecenbannaas 1

United States Code

SEEN ere Ae he SP PAC aL 1

AS ESR ME CIN fer TORE EE Stat DS 34

ES ie AE eS Rs, aU NP sale Mole Foe 1,2

Code of Federal Regulations

A Ee pe ere 31

28 C.F.R. § 540.17 (1999)....... IC a Pee Pe Ors 31

rederal Register

Be We: SE GD GUIED woke cetvonivnocnsecenses 31

Federal Rules of Civil Procedure

gs Sr See ir 13

vil

TABLE OF AUTHORITIES - Continued

Page

MONTANA MareriAts

Administrative Rules of Montana

Ee PL 5 h.ckcpuaeedatatuksesesacncuanun 14

OrHeR AUTHORITIES

Carol Rice Andrews, A Right of Access to Court

Under the Petition Clause of the First Amendment:

Defining the Right, 60 Ohio St. L.J. 557 (1999) ..... 37

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 195 F.3d 1121 and reproduced at Pet.

App. 1-17. The Court of Appeals’ denial of Petitioners’

petition for rehearing and suggestion for rehearing en

banc is unreported. Pet. App. 45. The United States Dis-

trict Court for the District of Montana’s decision is unre-

ported and reproduced at Pet. App. 18-26. The Magistrate

Judge’s Order and Findings and Recommendation are

unreported and reproduced at Pet. App. 28-44.

JURISDICTION

The Court of Appeals entered its judgment on

November 4, 1999 and denied a timely petition for

rehearing and suggestion for rehearing en banc on Janu-

ary 7, 2000. The Petition for Writ of Certiorari was filed

on April 6, 2000. This Court granted certiorari on Septem-

ber 26, 2000 and has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This matter involves application of the First Amend-

ment to the United States Constitution as incorporated

through section 1 of the Fourteenth Amendment. Respon-

dent asserts claims for relief under 42 U.S.C. § 1983.

The First Amendment reads:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereot; or abridging the freedom of speech,

or of the press, or the right of the people peace-

ably to assemble, and to petition the Govern-

ment for a redress of grievances.

Section 1983 of title 42, United States Code, reads:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or lerritory or the District of Columbia,

subjects, or causes to be subjected any citizen of

the United States, or other person within the

jurisdiction thereot to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

-—- ¢

STATEMENT OF THE CASE

This case presents the issue whether a state prison

inmate has a freestanding First Amendment right to pro-

vide “legal advice” to another inmate, which right immu-

nizes the first inmate from disciplinary sanctions for

violation of an otherwise valid and uniformly applied

prison disciplinary policy. The Ninth Circuit held that

Respondent Kevin Murphy possessed just such a right

with respect to statements made in a letter to a fellow

inmate concerning a pending criminal proceeding in

which the inmate already was represented by court-

appointed counsel.

The Court of Appeals’ judgment cannot withstand

scrutiny. The lower court has carved out a new species of

prisoners’ rights for protection, effectively creating a

“legal advice” privilege, and undermined the ability of

States to regulate in perhaps the most difficult area of

their myriad responsibilities —- maintaining order and

security in prisons. While it is not entirely clear whether

the Court of Appeals’ newly coined privilege is grounded

in the Speech Clause or in freedom of association, it is

plain under this Court’s prison-regulation decisions that

“legal advice” has no greater constitutional protection

than other forms of communication or conduct except

where protected under the Court's decisions defining an

inmate’s right to access the courts. As the Court has

explained, “an inmate does not retain those First Amend-

ment rights that are ‘inconsistent with his legal status as a

prisoner or with the legitimate penological objectives of

the corrections system.’ “ Jones v. North Carolina Prisoners’

Labor Union, Inc., 433 U.S. 119, 129 (1977) (quoting Pell v.

Procunier, 417 U.S. 817, 822 (1974)). Here, Respondent's

right to communicate with other prisoners is subject to

policies that unquestionably further those objectives.

1. Factual Background

1. Two Montana State Prison (“Prison”) policies

form the backdrop for this controversy: the Inmate Disci-

plinary Policy (“MSP 15-001") and the Inmate Correspon-

dence Policy (“MSP 16-001"). J.A. 6, 34. Also relevant is

an inmate legal) clerk program established by the Prison

and in operation during 1995. Request for Judicial Notice,

Ex. 3 (Dist. Ct. C.R. 37).

a. The Prison has promulgated a policy that

details a set of rules governing inmate discipline. The

objective of the policy is “[tlo provide a means of main-

taining discipline and enforcing necessary rules within

the institution to ensure that prisoners are provided fair,

timely, and impartial disposition of charges alleging vio-

lations of rules.” MSP 15-001, Objective (J.A. 6). Under

this policy, “[rlule violations are divided into three cate-

gories.” Id., Policy (J.A. 6). The most severe category,

“Class Il violations,” is at issue here and is defined as

“[t]hose institutional infractions which are termed a

major misconduct and are considered serious.” Id., Defi-

nitions (J.A. 7). Two Class Il rules are germane here. The

first — Rule 009 — prohibits “|iJnsolence,” which is defined

as “[wlords, actions or other behavior which is intended

to harass or cause alarm in an employee.” Examples of

“insolence” include “[cJursing; abusive language, writing

or gestures directed to an employee.” Jd., Procedures § B

(J.A. 10). The second — Rule 022 - prohibits “Interference

With Due Process Hearings,” which includes conduct

such as “making a false statement of misconduct

against . . . staff which could result in a disciplinary

action.” Id., Procedures § B (J.A. 14).!

' A third Class II violation - Rule 025 - proscribes

“Conduct Which Disrupts or Interferes with the Security or

Orderly Operation of the Institution.” MSP 15-001, Procedures

§ B (J.A. 15). It is defined as “purposefully engaging in acts

which disrupt the institutional security or orderly operation [of

the prison)” and “interfering with an employee in the

performance of his/her duties.” Id. Examples of conduct

covered by Rule 025 include “[i]nterfering with an institutional

count; missing count; interfering with a shakedown; knowingly

interfering with the intent to disrupt an employee conducting a

count or performing any routine security procedure.” Id.

Under the policy, an officer who witnesses a violation

completes an infraction report identifying the rule vio-

lated, the time and place of the incident, a description of

the violation, names of witnesses and a description of the

immediate action taken. MSP 15-001, Procedures § C.1

(J.A. 15-16). The policy cautions the officer writing the

report to “describe what he saw, not his conclusions

about what he saw.” Id., Procedures § C.2 (J.A. 16). A

hearings investigator then is assigned the task of investi-

gating each major misconduct report. Id., Procedures § E

(J.A. 18). Ultimately, the hearings officer “determine|[s] if

all necessary evidence has been gathered, weigh[s] the

credibility of all witnesses, determine[s] the facts in the

case, and decide|s] whether those facts amount to mis-

conduct.” Id., Procedures § G.1 (J.A. 21). Detailed provi-

sions govern the hearings officer's conduct of the

disciplinary hearing and permissible sanctions. Id., Pro-

cedures §§ G [sic] & H (J.A. 21-25).

If an inmate is unsatisfied with the hearings officer’s

decision regarding major misconduct offenses, he may

appeal “to the Warden by filling out a written request for

review including his reasons for review.” MSP 15-001,

Procedures § J.2 (J.A. 25). The inmate is then “notified in

writing of the decision of the Warden.” Id., Procedures

§ J.6 (J.A. 26). Finally, if the “inmate is not satisfied with

the decision of the Warden, he may consider instituting

appropriate litigation.” Id., Procedures § J.7 (J.A. 26).

b. The Prison also has promulgated a detailed

policy which addresses incoming and outgoing inmate

mail. MSP Policy 16-001 (}.A. 34). The policy does not

address inmate-to-inmate correspondence within the

Prison. It distinguishes between “privileged correspon-

dence” and “general correspondence.” The former cate-

gory includes mail to and from “licensed attorneys” and

various legal or advocacy entities such as the Montana

Defender Project, the Montana Legal Services Associa-

tion, the State Bar of Montana, the American Civil Liber-

ties Union, the Civil Rights Division of the United States

Department of Justice, and the National Association for

the Advancement of Colored People. Id., §§ 1.A, 2.A (J.A.

34-35). Outgoing privileged communications may not be

opened by prison staff unless reasonable grounds exist to

believe that the mail is being sent contrary to the policy

(id. §§ 1.B.2, VILA (J.A. 35, 43); incoming mail may be

opened only in front of the inmate for the purpose of

determining the presence of contraband but may not be

read by prison staff (id. L.C.2 & .3 (J.A. 35)). Outgoing

nonprivileged correspondence generally may not be

opened (id. II.B.4 (J.A. 36)), but incoming nonprivileged

correspondence is subject to being reviewed if, inter alia,

“it is from another correctional facility” or “is addressed

to Maximum Security or Administrative Segregation

inmates” (id. § I.C.3.a & .c (J.A. 37)).

All inmates were aware that mail sent to the maxi-

mum security unit may be opened and read according to

MSP Policy 16-001. Respondent himself acknowledged

that he was aware that his letter to an inmate in the

maximum security facility would be opened and

reviewed by prison officials. Pl.’s Stmt. Disputed Issues

{ 10 (J.A. 81); see also Reply Br. Supp. Mot. Summ. J. &

Opp’n Defs.’ Summ. J. at 6 (Dist. Ct. C.R. 32) (“[t]he

Prison has regulated and restricted [Respondent's] and

other inmates’ right by reading inmate-to-inmate mail, in

the exercise of their informed discretion”). Petitioner

Mahoney, the Prison’s warden, also stated in a 1997 affi-

davit filed in support of objections to the Magistrate

Judge’s recommended disposition that, with respect to

correspondence to prisoners incarcerated in the facility’s

maximum security unit, “all inmates know that mail to

[such unit] may be opened and read according to MSP

Policy 16-001.” Aff. Mike Mahoney { 14 (J.A. 97). The

District Court thus noted “the MSP policy of reading all

inmate correspondence entering the Maximum Security

Unit.” Pet. App. 20.

c. The policy governing the legal clerk program

in effect during 1995 defined as its overall purpose “[t]o

assist inmates in accessing the courts by offering advice

concerning issues, format and proper procedure.” Inmate

Legal Clerk Program - Montana Defender Project /Mon-

tana State Prison § I (Request for Judicial Notice, Ex. 3

(Dist. Ct. C.R. 37)). It required “inmates needing assis-

tance [to] report to the Librarian in charge” who, in turn,

was responsible for “assign[ing] the inmate to a legal

clerk.” Id. § VI.1 The policy additionally provided that

“{iJmmate legal clerks may accept only those cases

assigned to them.” Id. § VI.3. The policy stated speci-

fically that “[iJnmates seeking assistance are not entitled

to the assignment of a particular inmate law clerk.” Id.

§ IX.2. Special provisions governed the program's opera-

tion with respect to inmates in the maximum security

unit, where “legal clerks [were to be] separated from

Max .. . inmates by the use of the Max Visiting Room.” Id.

§ 111.3.

2. These prison policies became relevant here as a

result of a letter from Respondent to another inmate, Pat

Tracy, in February 1995. Compl., Ex. 1 (J.A. 50). Respon-

dent was a law clerk in the high security compound at the

Prison. Tracy had been charged in state district court with

felony assault of a prison guard and was incarcerated in

the maximum security unit. Aff. Kevin Murphy ] 3 (J.A.

78); Aff. Pat Tracy {J 3, 4 (J.A. 84). He had been appoin-

ted counsel in the criminal proceeding. Despite the fact

that he had counsel, Tracy requested the prison librarian

to assign Respondent to assist him “with those charges

against me and with framing the issues.” Id. |] 6-8 (J.A.

54). That request was denied because prison policy pro-

hibited inmates in the high security units from visiting

inmates, like Tracy, in maximum security. Aff. Kevin Mur-

phy | 3 UJ.A. 78)? Tracy was assigned a legal clerk

housed in the Prison’s “low-side.” Aff. Pat Tracy q 10

(}.A. 84). Tracy refused to speak with this clerk “because

(he] had a reputation for disclosing information obtained

trom meeting with inmates.” [d.

Even though not assigned to assist Tracy, Respondent

sent him the following letter on February 16, 1995:

Dear Pat:

How ya doing? Sorry I haven't wrote before

now. I been busy fighting my charges. Finally

~ Respondent contended before the District Court that he

had never been directed to “stop providing or continuing to

provide assistance to maximum security inmates” and that

“[o]n the high security side [of the Prison] the process of

providing assistance to inmates was informal.” Supp’ Aff.

Kevin Murphy 9] 4, 5 (J.A. 87). There is no dispute, however,

that Respondent's assistance was not authorized under the legal

clerk program policy’s specific terms or that Tracy’s specific

request for such assistance had been denied.

got everything taken care of. I can’t come up to

max anymore. [T]he lowside clerks go up there

now. [TJhat’s why I haven't called you out like I

used to. I do want to help you with your case

against Galle. It wasn’t your fault and I know he

provoked whatever happened! Don’t plead

guilty because we can get at least 100 witnesses

to testify that Galle is an over zealous guard

who has a personal agenda to punish and harass

inmates. He has made homo-sexual advances

towards certain inmates and that can be brought

up into the record. There are petitions against

him and I have tried to get the Unit Manager to

do something about what he does in Close II,

but all that happened is that I received two

writeups from him myself as retaliation. So we

must pursue this out of the prison system. I am

filing a suit with everyone in Close I and Il

named against him. So you can use that too!

Another poiont [sic] is that he grabbed you

from behind. You tell your lawyer to get ahold

[sic] of me on this. Don’t take a plea bargain

unless it’s for no more time.

I seen Damie for a little while when I was

out. I never came over to Butte much. Lenny is

living in lower D‘still and I don’t speak to him

much. His sister did something to Ted trom

what I heard. I don’t know what. Well I will

write again when I get this thing against Galle

finished.

Later... .

Murph

Compl., Ex. 1 (J.A. 50). Respondent was aware that prison

officials would read this correspondence. Supp’! Aff.

Kevin Murphy { 10 (J.A. 88).

Petitioner Shaw, a correctional officer, in fact read the

letter. Shaw believed the letter violated several Class II

rules under the Inmate Disciplinary Policy: Rule 009 -

Insolence; Rule 022 - Interference with Due Process Hear-

ings; and Rule 025 - Conduct Which Disrupts or Inter-

teres with the Security or Orderly Operation of the

Institution. MSP Policy 15-001, Procedures § B (J.A. 10,

14-15). He accordingly issued a separate Major Miscon-

duct Violation Report tor each alleged violation. The Rule

OU9 report read:

While routinely monitoring institutional mail |

(CS. Shaw) noticed comments in a letter from

Inmate Murphy to Inmate Tracy. In this letter,

Inmate Murphy accused CO Galle of being an

over Zealous guard who punishes and harasses

Inmates tor personal pleasure. Inmate Murphy

also accussed [sic] CO Galle of making homo-

sexual advances towards Inmates. Inmate Mur-

phy stated that CO Galle retaliated againsi

Inmate Murphy by writing him up on two rule

Violations.

Compl., Ex. 2 (A 52). In pertinent part, the Rule 022

report stated:

While routinely monitoring institutional mail |

(C.S/Shaw) noticed comments in a letter from

Inmate Murphy to Inmate Tracy concerning an

incident that had occurred with an assault on

CO Galle. In this letter, Inmate Murphy tries to

persuade Inmate Tracy to pursue certain actions

that may disrupt a court hearing in which

Inmate Murphy is no part of. Inmate Murphy

states he tried to “do something” about CO

Galle but He (Murphy) was retaliated against.

There is no evidence in of any the statements in

this letter to be fact.

Id. (J.A. 54). Lastly, the Rule 025 report alleged that

Respondent's comments were

intended to persuade Inmate Tracy to perform

certain actions to make a situation that Murphy

is involved in look better. Inmate Murphy also

stated “We must pursue this out of the Prison

system.” Inmate Murphy also stated “Well I will

write again when | have this thing against Galle

finished.” Both statements are threatening.

Id. (J.A. 57). Respondent denied each of the violations.

Compl., Ex. 3 (JA. 59, 61).

Petitioner Bearley served as the hearings officer and

concluded that Respondent had violated Rule 009 and

Rule 022, but not Rule 025. With respect to Rule 009, he

reasoned that the letter “states C/Q Galle retaliated

against inmate Murphy by issuing him a class Il antene-

tion” and that such “statement indicates unprofessional

actions which stand to intimidate the employee.” Compl,

Ex. 3 (J.A. 60). A Rule 022 violation was found because

“It}he statement inferring to C/O Galle making homo

sexual [sic] advances to another inmate would result in

disciplinary action against stated employee of the

D.O.C.” Id. (J.A. 62). Petitioner Bearley imposed comcur-

rent sentences of five days’ detention for the offenses,

which he suspended pending 90 days of “clear condhuct.*

Id. (J.A. 59, 61). Respondent also received three \points

that could be used to reclassify him to a higher custody

level. Aff. Kevin Murphy 1 6 (J.A. 78).

Petitioner Mahoney denied Respondent's appeal of

Petitioner Bearley’s adverse decisions. Aff. Kevin Mur-

phy ¥ 7 (J.-A. 78). Respondent did not raise in the pro-

ceedings below or elsewhere a claim based on an alleged

absence of a sufficient quantum of evidence to support

the findings that his conduct violated Rules 009 and 022.

See Superintendent v. Hill, 472 U.S. 445, 455 (1985). Prison

staff, finally, never delivered the letter to Tracy. He pled

guilty in the criminal proceeding to assaulting the guard.

Aff. Pat Tracy JJ 11, 12 (J.A. 84).

il. Proceedings Below

In October 1995 Respondent filed a class action under

42 U.S.C. § 1983 on his own behalf and that of present

and future inmates and inmate law clerks. Compl. (J.A.

63). He alleged violation of the First Amendment because

ot “Detfendants’ practice of disciplining inmate law clerks

for the content of their communications with other

inmates” and denial of access to the courts “by denying

[inmates] the assistance of an inmate law clerk.” Id. | 17

(J.A. 66). Respondent further challenged Petitioners’

enforcement of Rules 009 and 022 under the First Amend-

ment and the Due Process Clause as vague and over-

broad. Id. ¥¥ 20, 21 (J.A. 67). He sought declaratory and

injunctive relief against such enforcement and against

* The other Petitioners, Myron Beeson and Richard S. Day,

were not involved in Respondent's discipline. Petitioner Beeson

was a bureau warden at the Prison in 1995, while Petitioner Day

was director of the Montana Department of Corrections at that

time. Beeson is currently a deputy warden; Day remains

director of the Department.

“(djisciplining inmate law clerks for communications

with inmate clients.” Id., Prayer for Relief J 4c) (J.-A. 68).

The parties filed cross-motions for summary judg-

ment. The Magistrate Judge entered a recommended deci-

sion in February 1997 denying the motions, except with

respect to Respondent's access-to-courts claim, on the

ground that questions of fact existed relevant to applica-

tion of the standards in Turner v. Safley, 482 U.S. 78, 89-91

(1987). Pet. App. 28. The Magistrate Judge additionally

recommended denial of Respondent's motion for class

certification because he was no longer a legal clerk and

because the number of clerks was insufficient so as to

make their joinder impracticable under Fed. R. Civ. P.

23(a)(1). Pet. App. 43-44. Objections to the recommended

disposition were filed by all parties.

The District Court granted Petitioners’ motion for

summary judgment and denied Respondent's class action

certification motion. Pet. App. 18. The cowrt rejected

Respondent's First Amendment claim because Petitioners

had justified adequately the inmate correspondence pol-

icy under Turner on the basis of an affidavit filed by

Petitioner Mahoney. Pet. App. 22-23. It further found that

the record showed Respondent had not been acting as an

authorized legal clerk in his letter to Tracy, since the

requisite assignment by the prison librarian had not

occurred and since Respondent “was not permitted to

work for inmate Tracy because both inmates resided in

the high security side of the prison.” Pet. App. 23-24. On

the basis of this conclusion, the District Court held not

only that Respondent's access-to-courts claim failed but

also that the restraint on his ability to communicate did

not “exceed the inmate’s sentence in an unexpected man-

ner” so as to violate the Due Process Clause. Pet. App. 24.

The court deemed Respondent's overbreadth and vague-

ness claims predicated on the existence of viable First

Amendment and due process rights and therefore dis-

missed them because the Prison’s correspondence policy

satisfied Turner. Pet. App. 25. The court denied the class

certification motion because Respondent was no longer a

legal clerk.

Respondent appealed the grant of summary judg-

ment. Pet. App. 6 n.4. The Court of Appeals reversed.* In

* Before oral argument below, the Court of Appeals

directed Respondent's counsel to answer certain questions

about Respondent's custody status because of a statement in the

District Court's decision indicating that Respondent had been

paroled and the possibility of mootness. J.A. 99; see also Pet.

App. 18. Counsel's response stated that Respondent was

incarcerated in the Montana State Prison, Great Falls Regional

Prison, as the result of committing an additional felony. J.A. 100.

Respondent presently is incarcerated at the Prison in Deer

Lodge, Montana, on concurrently running sentences for three

felonies committed shortly after release from the Prison in

September 1996. If the Court of Appeals’ judgment is affirmed,

declaratory relief would appear appropriate with respect to

communications by Respondent containing, or purportedly

containing, “legal advice,” together with expungement of the

major misconduct violations under Rules 009 and 022. See Mont.

Admin. R. 20.25.504(2)(1) (Board of Pardoms may consider in

parole decisions “|t}he offender's conduct in the institution,

including particularly whether the inmate . . . is clear of major

disciplinary reports prior to the hearing”). The possibility of

detention sanctions, the assessment of reclassification points,

and the relevance of amy major misconduct violations in an

inmate’s past institutional history to parole determinations may

influence Respondent's willingness to offer “legal advice”

absent such relief.

so doing, it relied upon a prior Ninth Circuit decision to

hold that respondent had “a First Amendment right to

assist other inmates with their legal claims.” Pet. App. 6

(citing Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985)).

The court then applied the four-part balancing test set

forth in Turner and concluded that, in light of respon-

dent's First Amendment right to assist other inmates with

legal matters, the application of Montana's prison policies

to Respondent's conduct was invalid and could not stand

‘‘an exaggerated response.’ ” Pet. App.

‘

because it was

14.

First, without citing to a legal or factual basis, the

Court of Appeals stated that “the Prison’s interest in

security and order is at a low ebb when the correspon-

dence in question is legal advice relating to a pending or

potential case.” Pet. App. 12. The court sought to buttress

this general conclusion with the observation that Peti-

tioners “ha[d] little reason to enforce Rule 009 (Insolence)

in this context, since it can easily shield corrections offi-

cers from any ‘alarming’ statements contained in inmate

mail.” Id. The court thus opined that “the ‘logical nexus’

here between the governmental interest and the applica-

tion of the rules to law clerk correspondence is weak.”

Pet. App. 13.

Second, the Court of Appeals speculated that

Respondent had no “alternative means to exercise his

right to render legal assistance to maximum security

inmates” whom he could not visit personally. Pet. App.

13. Effectively placing the burden on Petitioners to estab-

lish the existence of an “alternative means,” the court

rejected the contention that Respondent could have com-

municated with Tracy’s appointed counsel directly

because “there is nothing in the record indicating that

Murphy had access to that lawyer’s name and address.”

Id.

Third, the Court of Appeals dismissed the claim that

immunizing law clerks from discipline “based on the

content of the legal advice they provide” would have any

significant impact on the prison employees, inmates or

resources. Pet. App. 13. It stated that Respondent did not

seek immunity from correspondence being intercepted

and reviewed and that prison officials therefore “could

continue to monitor correspondence and discipline law

clerks for any improper material that does not relate to legal

action.” Pet. App. 13-14 (emphasis supplied). In the

court’s view, the Prison could reorganize its staffing pat-

terns so that “corrections officers who directly interact

with inmates are shielded from the mail” and that, with

such reorganization, there would be no risk that officers

would be exposed to “alarming” statements about them-

selves. Pet. App. 14. Lastly, the court, posited that an

“easy, obvious alternative[ |” to enforcement of Rule 009

is the “shielding [of] correction officers who have direct

contact with inmates from inmate mail” and added that

“(t]he fact the prison officials will read the legal corre-

spondence should be adequate protection against imple-

mentation of any plan to interfere with Due Process

Hearings (Rule 022).” Id.5

* In the remainder of its decision, the Court of Appeals

declined to address the question whether interference “with law

clerk mail infringes on inmates’ right of access to the courts” in

light of the Turner-based First Amendment ruling. Pet. App. 15.

SUMMARY OF ARGUMENT

1. To the extent the Court of Appeals relied on the

Speech Clause in the First Amendment for its holding

that Respondent enjoys immunity from discipline for

statements made during the course of providing “legal

advice,” it ignored the teachings of Turner v. Safley, 482

U.S. 78 (1987), and other decisions of this Court. Turner

instructs generally that, in light of the inordinately diffi;

cult undertaking embodied in prison administration, fed-

eral courts must accord wide-ranging deference to prison

administrators — especially those responsible for state

institutions. As a consequence, policies that are “reason-

ably related to legitimate penological interests” will be

upheld under Turner against a claim that a constitutional

right has been violated. Turner itself involved a First

Amendment challenge to an inmate-to-inmate mail policy

and stands for the proposition that prison administrators

may sanction prisoners for the content of communica-

tions if the discipline is grounded in “neutral” criteria

advancing otherwise appropriate institutional interests.

See Thornburgh v. Abbott, 490 U.S. 401, 415-16 (1989).

The Court of Appeals’ conclusion that “legal advice”

has special protection ander the Speech Clause cannot be

reconciled either with Turner's particular facts or with

The court algo declined to resolve an as-applied vagueness

challenge te Rules 009 and 022. Id. It did consider, and reject,

Respondent's facial vagueness challenge to the rules because

“the regulations certainly provide adequate notice to prisoners

generally.” Pet. App. 16. The court remanded the matter to the

District Court “for the crafting of an appropriate remedy.” Pet.

App. 17.

application of the four Turner factors against which this

Court measures the reasonableness of a prison policy.

First, the mail regulation at issue in Turner, as applied at

the involved facility, did not treat inmate correspondence

dealing with legal matters differently than non-legal cor-

respondence. This Court also referred approvingly to

Federal Bureau of Prison regulations that stringently

restricted inmate mail dealing with legal matters. It thus

makes no sense to conclude, as the Ninth Circuit did, that

Respondent could not be sanctioned pursuant to the

Prison’s discipline policy when the validity of the policy

with respect to other forms of speech has been admitted.

Second, application of the Turner factois establishes

that it is entirely reasonable for prison administrators to

treat “legal advice” the same as other speech for purposes

of discipline under MSP 15-001. The security concerns

raised by mail containing “legal advice” are identical to

those attendant to non-“legal advice” correspondence,

while according special status to inmates who give “legal

advice” may raise additional institutional difficulties. The

discipline policy’s application to mail containing “legal

advice” also does not burden such correspondence to a

greater degree than other speech. Finally, the difficulty in

distinguishing “legal advice” from non-“legal advice”

would impose far more than a de minimis burden on

prison resources. Indeed, the last of these considerations

is borne out by Respondent's own vacillating positions

over whether his letter to Tracy is characterized properly

as “legal advice.”

2. To the extent the Court of Appeals relied on First

Amendment associational principles to create a right to

assist other inmates with “legal advice” immune from

application of MSP 15-001, it pursued a path foreclosed

by Jones v. North Carolina Prisoners’ Labor Union, Inc., 433

U.S. 119 (1977). Jones applied a reasonableness standard

comparable to that in Turner in rejecting a Speech Clause

and associational right challenge to prison regulations

prohibiting, inter alia, inmate union solicitation. Here, it

is doubtful that associational rights are even “barely

implicated” by application of the discipline policy to

“legal advice” communications, since the policy does not

prohibit those communications but, instead, merely sanc-

tions specified conduct that is found inconsistent with

“reasonable considerations of prison management.” The

same result obtains when the factors identified in the

later-decided Turner are applied.

3. The Court of Appeals’ decision has the effect of

expanding significantly the otherwise narrowly tailored

access-to-court doctrine. In creating a new “legal advice”

privilege under the First Amendment, the Ninth Circuit

has upset the balance that this Court struck between non-

interference with prison administration and inmates’ abi!-

ity to initiate proceedings concerned with the validity or

the conditions of their incarceration. The lower court, in

practical effect, has created a freestanding right to receive

legal assistance, which this Court stated in Lewis v. Casey,

518 U.S. 343 (1996), did not exist, by creating a right to

give such assistance. Here, moreover, the undisputed facts

showed the absence of an access-to-courts claim. First,

neither Respondent nor even Tracy possessed standing to

maintain such a claim. Johnson v. Avery, 393 U.S. 483, 487

(1969); Lewis, 518 U.S. at 351. Second, Respondent's “legal

advice” to Tracy was directed to a criminal proceeding in

which he had a court-appointed attorney. Id. at 353.

ARGUMENT

The Court of Appeals’ decision described the nature

of the First Amendment right “implicated” by Respon-

dent’s discipline in differing ways. At the beginning of its

analysis, the court cited prior circuit authority for the

proposition that his claim “turns on application of two

established legal principles” - the first of which is “that

inmates have a First Amendment right to assist other

inmates with their legal claims.” Pet. App. 6. The court

later stated that the imposition of discipline on Respon-

dent also implicated his First Amendment right to com-

municate by letter. Pet. App. 8-9. It then stated that the

prior circuit authority - Rizzo v. Dawson, 778 F.2d 527 (9th

Cir. 1985) — had “held that [an inmate’s] legal activities on

behalf of other inmates implicated associational rights

protected by the First Amendment” and that, “[t]o the

extent such a right exists, the Prison’s decision to disci-

pline Murphy in the instant case undoubtedly interferes

with that right.” Pet. App. 9 (footnote omitted).

The Ninth Circuit’s conclusions at their core ignore

this Court’s precedent which dictates that “challenges to

prison restrictions that are asserted to inhibit First

Amendment interests must be analyzed in terms of the

legitimate policies and goals of the correctional system, to

whose custody and care the prisoner has been committed

in accordance with due process of law.” Pell v. Procunier,

417 U.S. 817, 822 (1974). As discussed in Part I, insofar as

the Court of Appeals relied on the Speech Clause to

immunize communications containing purported “legal

advice” from sanctions under a discipline policy that

admittedly may be applied to other forms of speech and

thereby created a “legal advice” privilege, it plainly erred

under standards established by this Court. The Court of

Appeals’ reliance on associational interests as a basis for

the same freestanding First Amendment “legal advice”

privilege was also erroneous and is discussed in Part II.

Finally, the incompatibility of the Ninth Circuit’s newly

created First Amendment “legal advice” right and the

access-to-courts doctrine as developed by this Court is

discussed in Part III.

I. THE COURT OF APPEALS ERRED IN CONCLUD-

ING THAT “LEGAL ADVICE” CONVEYED FROM

ONE INMATE TO ANOTHER INMATE ENJOYS

PROTECTED STATUS UNDER THE SPEECH

CLAUSE IN THE FIRST AMENDMENT.

A. This Court’s Prisoner Mail Decisions Establish

That Prisons May Prohibit, Censor, and Punish

Under “Neutral” Criteria Inmate-to-Inmate

Mail Without Violating the First Amendment's

Speech Clause.

This Court has addressed the relationship of inmate

mail regulation and the First Amendment in several deci-

sions. The first of these cases, Procunier v. Martinez, 416

U.S. 396 (1974), involved a challenge to California admin-

istrative rules that authorized censorship of prisoner mail

received from or sent to persons, other than licensed

attorneys and public office holders, outside the institu-

tion - i.e., “outgoing” or “incoming” mail. Those rules

permitted review of the mail to determine compliance

with certain standards prohibiting, inter alia, “letters in

which [prisoners] ‘unduly complain’ or ‘magnify griev-

ances[ ]'” or “express| } inflammatory political, racial,

religious or other views or beliefs.” Id. at 399; see also id.

at 415 (discussing mailroom checklist used at one facility

that “authorized rejection of letters ‘criticizing policy,

rules or officials[ ]’”). The Court initially emphasized

that, “[t]raditionally, the federal courts have adopted a

broad hands-off attitude toward problems of prison

administration” because “the problems of prisons are

complex and intractable, and, more to the point, they are

not readily susceptible to resolution by decree.” Id. at

404-05. “Courts,” in short, “are ill-equipped to deal with

the increasingly urgent problems of prison administration

and reform|[,]” and deference to prison administrators -

particularly where state facilities are under scrutiny — is

warranted. Id. at 405.

The Martinez Court nevertheless recognized its oblig-

ation “to take cognizance of valid constitutional claims

whether arising in federal or state institutions.” 416 U.S.

at 405. Where incoming and outgoing inmate mail was

involved, such claims presented special difficulties

because not only the First Amendment speech rights of

prisoners were implicated but also those of nonprisoners.

Id. at 409. Since the regulations affected both prisoners

and nonprisoners, the Court stated that prison officials

“must show that a regulation authorizing mail censorship

furthers one or more of the substantial governmental

interests of security, order, and rehabilitation” and that

“the limitation of First Amendment freedoms must be no

greater than is necessary or essential to the protection of

the particular governmental interest involved.” Id. at

413-14. The California policy did not pass muster under

these rigorous criteria, since the prison officials had con-

tended “not that the regulations are justified by a legiti-

mate state interest but that they do not need to be” and

since, in fact, the “regulations authorized censorship of

prisoner mail far broader than any legitimate interest of

penal administration.” Id. at 415-16.

That the stringent standard set in Martinez was prem-

ised on the constitutional rights of the non-incarcerated

party and that far more deference must be accorded

prison administrators with respect to regulation of

inmate-to-inmate communications was made clear thir-

teen years later in Turner. There, the Court distinguished

Martinez and rejected a strict scrutiny standard for

reviewing prison regulations. In so ruling, the Court

explained that its decisions since Martinez had held that

the proper standard was whether the prison regulations

were “ ‘reasonably related’ to legitimate penological

objectives.” 482 U.S. at 87.° The Turner Court embraced

6 Pell v. Procunier, 417 U.S. 817, 826 (1974) (prohibition

against in-person media interviews with inmates but not

visitations from families, clergy, attorneys, and friends of prior

acquaintance; “[s]o long as reasonable and effective means of

communication remain open and no discrimination in terms of

content is involved, we believe that, in drawing such lines,

‘prison officials must be accorded latitude’ ”); Jones v. North

Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 (1977)

(prohibition of prisoner union mailings, meetings and

solicitations; “[aJn examination of the potential restrictions on

speech or association that have been imposed by the regulations

under challenge[ } demonstrates that the restrictions imposed

are reasonable, and are consistent with the inmates’ status as

this deferential standard and the sharp curtailing of

inmates’ speech rights for two reasons.

First, “[s]ubjecting the day-to-day judgments of

prison officials to an inflexible strict scrutiny analysis

would seriously hamper their ability to anticipate secu-

rity problems and to adopt innovative solutions to the

intractable problems of prison administration.” 482 U.S.

at 89; see Jones, 433 U.S. at 129 (“[p]risons, it is obvious,

differ in numerous respects from free society” because

they “are populated, involuntarily, by people who have

been found to have violated one or more of the criminal

laws established by society for its orderly governance”).

Second, adoption of a strict scrutiny standard would

mean that “every administrative judgment would be sub-

ject to the possibility that some court somewhere would

conclude that it had a less restrictive way of solving the

problem at hand.” Id. Four factors then were distilled

from the earlier prisoners’ rights cases to guide the

prisoners and with the legitimate operational considerations of

the institution”); Bell v. Wolfish, 441 U.S. 520, 548 (1979)

(restriction on incoming hardback book mailings; “judicial

deference is accorded not merely because the [prison]

administrator will, as a matter of fact in a particular case, have a

better grasp of his domain than the reviewing judge, but also

because the operation of our correctional facilities is peculiarly

the province of the Legislative and Executive Branches of our

Government, not the Judicial”); Block v. Rutherford, 468 U.S. 576,

586 (1984) (prohibition of “contact” visitations; given absence of

dispute over internal security as a legitimate governmental

interest, “our inquiry is simply whether petitioners’ blanket

prohibition on contact visits . . . is reasonably related to the

security of that facility”).

reasonableness assessment: (1) whether there was “a

‘valid, rational connection’ between the prison regulation

and the legitimate governmental interest put forward to

justify it”; (2) “whether there are alternative means of

exercising the right that remain open to prison inmates”;

(3) “the impact accommodation of the asserted constitu-

tional right will have on guards and other inmates[ | and

on the allocation of prison resources generally”; and (4)

“the absence of ready alternatives.” Id. at 89-90.

Applying the four-factor test, this Court upheld the

incoming inmate-to-inmate mail prohibition. It relied on

testimony from Missouri prison officials concerning the

potential of employing such mail to facilitate unlawful

gang activity; the fact that “the correspondence regula-

tion does not deprive prisoners of all means of expres-

sion;” a “tradeoff” between the exercise of the claimed

First Amendment right by one class of inmates and “lib-

erty and safety for everyone else, guards and prisoners

alike;” and the prison officials’ concerns over the fea-

sibility of reading every piece of inmate mail so as to

capture all dangerous messages and the accompanying

conclusion that the alternative of individual letter review

“clearly would impose more than a de minimis cost on

the pursuit of legitimate correctional goals.” 482 U.S. at

92-93.”

7 The Court applied these standards almost immediately

outside a prison mail context in O’Lone v. Estate of Shabazz, 482

U.S. 342 (1987), where it rejected a Free Exercise Clause

challenge to a prison regulation that precluded work gang

members from returning to the main prison building during the

day except for emergencies. This Court both reiterated the

general applicability of the “reasonably related to legitimate

Lastly, in Thornburgh v. Abbott, 490_U.S. 401 (1989),

this Court again applied Turner standards in upholding

Federal Bureau of Prisons regulations that authorized

prison administrators to reject incoming publications

deemed detrimental to institutional security or poten-

tially capable of facilitating criminal activity.* The Court

penological interests” standard in resolving claims under the

First Amendment and stressed with respect to the “alternative

means” consideration that, although the rule made it impossible

tor Islamic prisoners to attend some religious services on

Fridays, “{i]n Turner{ ] we did not look to see whether prisoners

had other means of communicating with fellow inmates|[ } but

instead examined whether the inmates were deprived of ‘all

means of expression.’ “ /d. at 352.

“ In determining that Turner's reasonableness standard

controlled, the Court revisited Martinez. Although questioning

whether the earlier decision “should, or need, be read as

subjecting the decisions of prison officials to a strict ‘least

restrictive means’ test” (490 U.S. at 411), it overruled Martinez to

the extent the analysis there might have suggested applicability

of the more stringent standard with respect to incoming

correspondence where the sender was not a prisoner (id. at

413-14). The Abbott Court observed that, since “outgoing

correspondence was the central focus of our opinion in

Martinez” and “[t]he implications of outgoing correspondence

for prison security are of categorically lesser magnitude than

the implications of incoming materials[,]” an “attempt to justify

a similar categorical distinction between incoming

correspondence from prisoners ... and incoming

correspondence from nonprisoners would likely prove futile.”

Id. at 413. The Court additionally recognized that “it might have

been possible to apply a reasonableness standard to all

incoming materials without overruling Martinez” but chose “not

to go that route . . . for we prefer the express flexibility of the

Turner reasonableness standard.” Id. at 414.

inter alia, found the regulations to be “neutral,” notwith-

standing the need for assessment of an individual pub-

lication’s content, because “prison administrators draw

distinctions between publications solely on the basis of

their potential implications for prison security” (id. at

415) and because wardens themselves were required to

make the assessments (id. at 416). With respect to consid-

eration of the “alternative means of exercising the right,”

the Court reiterated that, in Turner, “it was sufficient if

other means of expression (not necessarily other means of

communicating with inmates in other prisons) remained

available.” Id. at 418. It was unpersuaded by criticism of

the Federal Bureau's “all-or-nothing rule” under which

the entire publication, and not merely objectionable

pages, was censored given prison administrators’ “fear

that tearing out the rejected portions and admitting the

rest would create more discontent than the current prac-

tice.” Id. at 418-19. The Court reasoned that “when prison

officials are able to demonstrate that they have rejected a

less restrictive alternative because of reasonably founded

fears that it will lead to greater harm, they succeed in

demonstrating that the alternative they in fact selected

was not an ‘exaggerated response’ under Turner” and that

“administrative convenience of this proposed alternative

is also a factor to be considered.” Id. at 419. All in all, “the

broad discretion accorded prison wardens by the regula-

tions . . . is rationally related to security interests.” Id. at

416.

At least two principles relevant to whether the

Speech Clause creates a freestanding “legal advice” privi-

lege can be drawn from these inmate mail decisions. First,

Turner significantly curtailed prisoners’ First Amendment

rights by extending a substantial measure of deference to

prison administrator determinations concerning appro-

priate forms of inmate regulation, including permitting or

prohibiting inmate mail based on content. Challengers to

prison regulations accordingly bear a “heavy burden of

showing that these officials have exaggerated their

response to the genuine security considerations that actu-

ated these restrictions and practices.” Bell v. Wolfish, 441

U.S. 520, 562-63 (1979). Second, implicit in the right to

censor all inmate-to-inmate mail is the right to adopt

disciplinary rules that sanction prisoners for the content

of such correspondence so long as the punishment is

grounded in “neutral” criteria, i.e., criteria that are

intended to advance otherwise appropriate institutional

interests. As discussed in Subpart B, these principles

mean that prison administrators are not required by the

Speech Clause to give special status to “legal advice.”

B. Turner Establishes That the Speech Clause Does

Not Specially Protect Inmate-to-Inmate Mail

Purporting to Contain “Legal Advice” From

Application of Disciplinary Policy Which

Admittedly May Be Applied to Communica-

tions With Other Content.

1. Turner is particularly relevant to whether speech

concerned with legal matters is situated differently for

First Amendment purposes than speech directed to non-

legal issues. The Missouri Division of Corrections had

promulgated regulations that prohibited mail between

prisoners in different penal facilities except for three

situations: correspondence “ ‘with immediate family

members who are inmates in other correctional institu-

tions|;]’ ” correspondence “between inmates ‘concerning

legal matters[;]’” and correspondence when “ ‘the classi-

fication/treatment team of each inmate deems it in the

best interests of the parties involved.’ ” 482 U.S. at 81-82.

The Turner litigation, however, focused on one facility, the

Renz Correctional Institution, and this Court pointed to a

district court finding of a substantially more restrictive

practice there. Id. at 82. The referenced finding of the trial

court stated:

The provisions of the divisional correspondence

regulation allowing the classification/treatment

team of each inmate to prohibit inmate-to-

inmate correspondence have not been followed

at Renz. . . . At Renz, however, the rule as

practiced is that inmates may not write non-

tamily inmates or receive mail from non-family

inmates. The more restrictive practice is set

forth in the Renz Inmate Orientation Booklet

presented to each inmate upon arrival at Renz.

The restrictive rule at Renz is commonly known

throughout the Missouri Correctional System.

Safley v. Turner, 586 F. Supp. 589, 591 (W.D. Mo. 1984),

aff'd, 777 F.2d 1307 (8th Cir. 1985), aff'd in part & rev'd in

part, 482 U.S. 78 (1987). The district court further stated in

a later finding:

Under an unwritten rule at Renz, prior approval

is required before an inmate may write to

another inmate regarding legal matters. Absent

this approval, inmate-to-inmate legal mail rou-

tinely is opened, stopped, and refused in viola-

tion of the Department of Corrections’ written

rule.

Id.; see also Safley v. Turner, 777 F.2d 1307, 1310-11 (8th Cir.

1985) (“[t]he challenged rule, both on its face and as

applied, purports to eliminate all manner of correspon-

dence between inmates not ‘approved’ by the classifica-

tion/treatment team”), aff'd in part & rev'd in part, 482

U.S. 78 (1987). There was thus no dispute that, at the

Renz facility, correspondence dealing with legal matters

was regulated in much the same, if not the same, manner

as other correspondence between non-family members.

That the mail policy at the Renz facility was more

restrictive than the Division of Corrections’ rule was dis-

cussed in the Turner majority opinion and in the concur-

ring and dissenting opinion. 482 U.S. at 93 n.*; id. at

105-12 (Stevens, J., concurring in part and dissenting in

part). Responding to Justice Stevens’ contention concern-

ing the unreasonableness of “the total ban on correspon-

dence between inmates at Renz and unrelated inmates in

other correctional facilities” (id. at 105), this Court noted

that, aside from differences in institutional security con-

cerns between the Renz facility and other Missouri

prisons, “the Renz rule is consistent with the practice of

other well-run institutions, including institutions in the

federal system” (id. at 93 n.*). Under Federal Bureau of

Prisons regulations then in effect, inmate-to-inmate corre-

spondence was quite restrjCted:

‘

1 Aninmate may be permitted to correspond with

an inmate confined in any other penal or correc-

tional institution, providing the other inmate is

either a member of the immediate family, or is a

party or a witness in a legal action in which both

inmates are involved. The Warden may approve

such correspondence in other exceptional cir-

cumstances, with particular regard to the secu-

rity level of the institution, the nature of the

relationship between the two inmates, and

whether the inmate has other regular correspon-

dence. The following additional limitations

apply:

(a) Such correspondence at institutions of

all security levels may always be inspected and

read by staff at the sending and receiving insti-

tutions (it may not be sealed by the inmate); and

(b) The Wardens of both institutions must

approve of the correspondence.

28 C.F.R. § 540.17 (1986).° Given the absence of any sug-

gestion in Turner that an outright prohibition of inter-

prisoner correspondence containing “legal advice’ and

the Court’s explicit recognition that in “well-run institu-

tions” such correspondence is regulated more stringently

than alleged by Respondent, there is no basis upon which

to conclude that inmate-to-inmate mail concerned with

legal proceedings is not situated comparably for First

Amendment purposes with mail containing other con-

tent. That, however, is what the Court of Appeals did

below: It has required prison administrators to treat

inmate-to-inmate “legal advice” differently than any

other type of prisoner correspondence.

2. the conclusion warranted by the language of the

prison policy approved in Turner additionally comports

with that decision’s reasonableness standard. It makes

® Section 540.17 was modified subsequent to Turner (61 Fed.

Reg. 65,204 (1995)), but the first sentence of the regulation was

not changed substantively. See 28 C.F.R. § 540.17 (1999).

perfect sense for prison administrators like Petitioners to

treat correspondence that may contain “legal advice” the

same as other forms of speech for purposes of prison

discipline under MSP 15-001. Several general consider-

ations and Respondent’s own protean positions in this

litigation bear witness to such reasonableness when mea-

sured under the four Turner factors.

First, the security concerns raised as an ordinary

matter by inmate-to-inmate mail in Turner apply with

equal force to correspondence that may contain “legal

advice.” Petitioner Mahoney's affidavit before the District

Court identified various objectives underlying the

Prison’s correspondence policy, including discovering

facts relevant to plots about correctional staff, plots con-

cerning the use of false testimony, formation and activ-

ities of gangs, and anticipated or consummated illegal

conduct. Aff. Mike Mahoney {] 4, 6, 8 (J.A. 96-94). It

takes little imagination to envision inmates using coded

communications in the form of “legal advice” to carry out

or facilitate any of the activities identified by Warden

Mahoney. See Jones, 433 U.S. at 132 (“The interest in

preserving order and authority in the prison is self-evi-

dent. Prison life, and relations between the inmates them-

selves and between the inmates and prison officials or

staff, contain the ever present potential for violent con-

flict and conflagration”). Moreover, as members of this

Court and the amici curiae States have recognized, the

“legal advice” privilege created by the Court of Appeals

carries with it unique possibilities for abuse and institu-

tional disruption. Johnson v. Avery, 393 U.S. 483, 499

(1969) (White, J., dissenting) (“[m]Jany assert that the aim

of the jailhouse lawyer is not the service of truth and

justice, but rather self-aggrandizement, profit, and

power”); Amicus Curiae Br. States of Florida et al. at 8

(observing that the decision below has the potential to

elevate “any inmate who purports to provide legal assis-

tance” to a position of power). This sort of judgment call

falls precisely into the area of prison-administrator dis-

cretion that the federal judiciary should not trench upon.

See Sandin v. Con,er, 515 U.S. 472, 486 (1995) (counseling

“appropriate deference and flexibility to state officials

trying to manage a volatile environment”).

Second, application of MSP 15-001 in a non-

discriminatory manner to “legal advice” does not burden

the exercise of speech or other fundamental constitutional

rights any more than application of the disciplinary pol-

icy to other forms of speech. Inmates may engage tn both

kinds of speech under exactly the same terms. The second

Turner factor thus is satisfied because MSP 15-001 does

not deprive prisoners of any, much less all, “means of

[legitimate] expression.” Turner, 482 U.S. at 78.

Third, it is possible for letters containing such advice

also to discuss plainly non-legal matters, as did the last

paragraph ot Respondent's letter to Tracy. Prison admin-

istrators accordingly would be confronted with distin-

guishing between “legal” and “non-legal” advice to

determine the scope of an inmate's immunity from disci-

pline. Characterization of content as “legal” or non-

“legal,” needless to say, can be problematic. So, for exam-

ple, the statement in the letter’s first paragraph concern-

ing Respondent's receipt of two retaliatory “writeups”

from the guard was the basis for the Rule 009 violation.

That statement only remotely, if at all, can be said to

relate to “legal advice” concerning Tracy’s criminal pro-

ceeding, since whether those “writeups” were retaliatory

has no relevance to whether the guard “provoked” the

assault by Tracy. The same can be said about the allega-

tion of the guard’s homosexuality, the basis of the Rule

022 violation. The Court of Appeals itself made no effort

to define what constitutes “legal advice” generally, and

the absence of such an effort is understandable given the

term’s inherently uncertain scope. Prison administrators,

meanwhile, are left with the day-to-day, letter-by-letter

task of making virtually instantaneous determinations

concerning whether correspondence contains “legal

advice.” This line-drawing would tax the most skilled of

jurists who have the luxury of time. The corresponding

burden would have an undoubted ” ‘ripple effect’ . . . or

prison staff” (Turner, 482 U.S. at 90) and “clearly woulc

impose more than a de minimis cost on the pursuit of

legitimate corrections goals” (id. at 93) — consequences

relevant to the third and fourth Turner considerations.

“a4

Respondent’s own vacillating positions reveal the

difficulties in characterizing particular content as “legal

advice.” His complaint requested, inter alia, relief

“[djeclaring that the Defendants’ practice of disciplining

inmate law clerks based on the content of their advice to

other inmates violates the clerks’ and inmates’ rights

pursuant to the First Amendment and 28 U.S.C. § 2254” —

relief that would have been irrelevant unless his letter to

Tracy purportedly contained “legal advice.” Compl.,

Prayer for Relief { 3 (J.A. 67-68). Before the Court of

Appeals, his principal brief argued that “the essence of

Murphy’s communication was, ‘don’t plead guilty, you

may have a defense predicated upon the guard’s reputa-

tion for treatment of other inmates’ ” and that “[t]his was

good advice, since Montana admits evidence of the char-

acter of the alleged victim to support a claim of self

defense.” Br. Appellant at 17. Respondent's brief contin-

ued on to underscore the “legal advice” nature of the

letter to Tracy:

Had Murphy said, “I think you have a good

defense under [State v. Shadwell, 57 P. 281 (Mont.

1399)],” we certainly would conclude that his

communication was proper and not punishable.

But Murphy wrote about the traits themselves.

If Murphy had paraphrased Shadwell (i.e., “Galle

has made threats and has a reputation for vio-

lence to inmates”) could we say anything differ-

ent? ... The Prison has never offered evidence

that connects arguably valid advice to dny legiti-

mate penological interest.

Id. at 18. Before this Court, though, Respondent took a

strikingly different tack, contending that “[t]here is a

great distinction between ‘writ writing’ and Murphy’s

letter” and, after a description of a legal clerk’s duties at

the Prison, that:

Murphy’s letter does not fit well under

these functions. Rather, his letter is akin to that

from a witness in a legal proceeding. (“Tell your

lawyer to get a hold of me on this (and this is

why),” Murphy wrote.) This is witness lan-

guage, not lawyer language.

Br. Opp’n Pet. Writ Cert. at 4. This Court should not

foster this type of language-parsing and the concomitant

burden on state and federal prison administrators.

Finally, it warrants emphasis that the Court of

Appeals’ analysis is replete with precisely the sort of

judicial second-guessing that Turner's reasonableness test

is designed to preclude. The court believed, with refer-

ence to the first Turner factor, that “[t]he Prison... has

little reason to enforce Rule 009 (Insolence) in this con-

text, since it can easily shield correction officers from any

‘alarming’ statements contained in inmate mail.” Pet.

App. 12. The panel relied exclusively on its “shielding”

rationale in applying the third and fourth Turner consid-

erations. Pet. App. 14. It is nonetheless unclear how

prison administrators can prevent correction officers

from gaining knowledge indirectly of such statements

once communicated from one inmate to another. As to the

second factor, the Court of Appeals dismissed out of

hand the suggestion that Respondent had an alternative

means of conveying his “legal advice,”i.e., sending the

letter to Tracy’s attorney, with the statement that “noth-

ing in the record indicat[es] that Murphy had access to

that lawyer’s name or address.” Pet. App. 13. There is no

reason to doubt, however, Respondent could have made

efforts to learn the attorney’s identity from Tracy or

others, and he bore the burden - which was not carried

below - to show the contrary. O’Lone, 482 U.S. at 350

(“placing the burden on prison officials to disprove the

availability of alternatives . . . fails to reflect the respect

and deference that the United States Constitution allows

for the judgment of prison administrators”).

Il. THE COURT OF APPEALS’ RELIANCE ON FIRST

AMENDMENT ASSOCIATIONAL RIGHTS FOR

ITS “LEGAL ADVICE” EXCEPTION TO THE

APPLICATION OF THE DISCIPLINARY POLICY

CANNOT BE RECONCILED WITH JONES.

Aside from the Speech Clause, the Court of Appeals

relied on a First Amendment associational interest “to

assist other inmates with their legal claims” (Pet. App. 6)

as a basis for establishing a freestanding “legal advice”

right to immunity from application of MSP 15-001. It

cited as the sole authority for this proposition the Ninth

Circuit's pre-Turner decision in Rizzo. Pet. App. 6, 8, 9. In

so holding, the court ignored Jones v. North Carolina Pris-

oners’ Labor Union, Inc., 433 U.S. 119 (1977), a decision

which controls the right-of-association analysis here.'°

Appeals’ reasoning, the decision in Rizzo adds nothing. Rizzo

relied on a Tenth Circuit decision, Owens v. Rush, 654 F.2d 1370

(10th Cir. 1981), to find the plaintiff inmate's allegation that,

inter alia, “he encouraged and offered to help his fellow

students in the vocational course in legal matters” sufficient to

state a claim predicated on the theory that the First Amendment

protects “any collective action . . . taken to obtain meaningful

access to the courts.” Rizzo, 778 F.2d at 531. Owens involved

retaliation against a sheriff's department employee for assisting

his spouse with a sex discrimination suit against the

department. Consequently, not only did Owens arise in a non-

prison environment, but also it was concerned with a different

type of “access to the courts” - that reflected in NAACP v.

Button, 371 U.S. 415 (1963) — than that relevant to prisoners. See

generally Carol Rice Andrews, A Right of Access to Court Under

the Petition Clause of the First Amendment: Defining the Right, 60

Ohio St. L.J. 557, 571-80 (1999) (contrasting access-to-court

decisions in prisoner and “group litigation” contexts). The Rizzo

panel did not note this distinction in concluding that the

Jones involved a challenge to a prison regulation pro-

hibiting inmates from soliciting other inmates to join a

prisoners’ union, barring union meetings, and making the

prison mail system unavailable for bulk mailings of union

materials. At the outset, the jones Court explained that

“[plerhaps the most obvious of the First Amendment

rights that are necessarily curtailed by confinement are

those associational rights that the First Amendment pro-

tects outside of prison walls” because “[t]he concept of

incarceration itself entails a restriction on the freedom of

inmates to associate with those outside the penal institu-

tion” and “restrictions on the associational rights among

inmates.” 433 U.S. at 125-26. This Court then began its

substantive analysis with the general deference principle

reiterated subsequently in Turner:

The invocation of the First Amendment,

whether the asserted rights are speech or asso-

ciational, does not change th{e] analysis. In a

prison context, an inmate does not retain those

First Amendment rights that are “inconsistent

with his status as a prisoner or with the legiti-

mate penological objectives of the corrections

system.” ... In seeking a “mutual accommoda-

tion between institutional needs and objectives

[of prisons] and the provisions of the Constitu-

tion that are of general application,” . . . this

Court has repeatedly recognized the need for

major restrictions on a prisoner’s rights. .. .

plaintiff inmate possessed a legally cognizable “first

amendment right[ }” to “bring[ ] and assist[] in civil rights

litigation.” 778 F.2d at 532. The panel below also did not

acknowledge that distinction.

These restrictions have applied as well where

First Amendment values were implicated.

Id. at 129-30 (citations omitted). The Court found speech

rights “barely implicated” by the mail restriction since it

affected only the cost attendant to distribution of union

material and since “other avenues of outside informa-

tional flow by the Union remain available.” Id. at 130-31.

Inmate-to-inmate solicitation of union membership also

was held outside Speech Clause protection because, as

“an invitation to collectively engage in a legitimately

prohibited activity,” such solicitation “involves a good

deal more than the simple expression of views as to the

advantages or disadvantages of a union or its views.” Id.

at 131-32. As for associational interests, the Court stated

that “the presence, and perhaps even the objectives, of a

prisoners’ labor union would be detrimental to order and

security of the prisons” and that “[iJt is enough to say

that [the prison administrators] have not been con-

clusively shown to be wrong in this view.” Id. at 132.

Here, one is hard-pressed to say that associational

rights are even “barely implicated” by uniformly

imposed, content-neutral disciplinary rules. MSP 15-001

does not preclude inmates from giving “legal advice” to

other inmates. Rather, it sanctions specified conduct that

is admittedly inconsistent with “reasonable consider-

ations of penal management” without reference to

whether that conduct occurs while communicating such

advice. See Jones, 433 U.S. at 132. The Court of Appeals’

characterization of “the Prison’s interest in security and

order” as being “at a low ebb” (Pet. App. 12) when “legal

advice” is being given thus misses the mark badly. Pris-

oner administrators always have an intense “interest in

security and order,” and any First Amendment associa-

tional rights attendant to the exchange of “legal advice”

must give way. See Pell v. Procunier, 417 U.S. 817, 823

(1974) (“central to all other correctional goals is the insti-

tutional consideration of internal security within the cor-

rectional facilities themselves”).

Moreover, while Jones focused on the overall question

whether the involved regulation was reasonably related

to legitimate penological interests and did not address

separately the considerations later identified in Turner,

each of those considerations is satisfied here. The first

and third Turner factors are met because MSP 15-001

admittedly furthers the Prison’s interest in security and

order and because recognizing a “legal advice” privilege

to that policy’s application would open the door to con-

duct potentially impairing institution security or safety

interests. The second and fourth are satisfied because

nothing in the disciplinary policy precludes an inmate

giving “legal advice” to a fellow inmate so long as the

disciplinary policy is not violated otherwise.

Jones teaches unambiguously that inmates retain only

a modicum of First Amendment associational rights. The

Ninth Circuit has sought to expand significantly those

rights and elevate them above prison administrators’ con-

cern for safety and security. Associational interests can-

not support such an independent, freestanding right for

prisoners to render legal advice in the face of these

administrators’ responsibility for maintaining institu-

tional integrity through policies like MSP 15-001.

Il. THE COURT’S ACCESS-TO-COURTS DOCTRINE

DEFINES THE SCOPE OF AN INMATE’S CON-

STITUTIONAL ENTITLEMENT TO LEGAL

ASSISTANCE FROM A FELLOW INMATE.

The Court of Appeals’ Speech Clause and associa-

tional right analysis was flawed for another reason: By

attaching constitutional status to assistance with any

“legal claims,” it effectively expands the access-to-courts

doctrine through which this Court has accommodated the

interest that prisoners have with the validity or condi-

tions of their incarceration. This conclusion becomes

strikingly evident when the basic contours of that doc-

trine are examined in the Court’s three most relevant

decisions applying it: Johnson v. Avery, 393 U.S. 483

(1969); Bounds v. Smith, 430 U.S. 817 (1977); and Lewis v.

Casey, 518 U.S. 343 (1996).

In Johnson, the Court invalidated a Tennessee prison

regulation that prohibited any inmate from “advis|ing],

assist[ing] or otherwise contract[ing] to aid another,

either with or without a fee, to prepare Writs or other

legal matters.” 393 U.S. at 484. The petitioner inmate had

been disciplined for the regulation’s violation, and this

Court found that the practical effect of the writ-writing

prohibition was to “forbid| | illiterate or poorly ¢ducated

prisoners to file habeas corpus petitions” (id. at 487),

since the State did “not provide an available alternative

to the assistance provided by other inmates” (id. at 488).

This Court concluded that, “unless and until the State

provides some reasonable alternative to asgist inmates in

the preparation of petitions for post-conviction relief, it

may 1not-validly enforce a regulation such as that here in

issue, barring inmates from furnishing such assistance to

other prisoners.” Id. at 490. Significantly, therefore, rather

than creating a freestanding right to assist other inmates

as the court below has done, this Court has found such a

right to exist only in the absence of alternative forms of

legal assistance. Id. at 489.

The contours of this right were made more concrete

in Bounds. There, this Court held that “the fundamental

constitutional right of access to the courts requires prison

authorities to assist inmates in the preparation and filing

of meaningful legal papers by providing prisoners with

adequate law libraries or adequate assistance from per-

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

Lewis clarified Bounds in two respects. This Court

explained as to Article III standing: “Insofar as the right

vindicated by Bounds is concerned, ‘meaningful access to

the courts is the touchstone,’ . . . and the inmate therefore

must .. . demonstrate that the alleged shortcomings in the

library or legal assistance program hindered his efforts to

pursue a legal claim.” Lewis, 518 U.S. at 351. Bounds, in

other words, “did not create an abstract, freestanding right

to a law library or legal assistance.” Id. Lewis additionally

made clear that the access-to-courts doctrine is concerned

with “tools . . . that the inmates need to attack their

sentences, directly or collaterally, and in order to challenge

the conditions of their confinement” and that “[i}mpair-

ment of any other litigating capacity is simply one o, -he

incidental (and perfectly constitutional) consequences of

conviction and incarceration.” Id. at 355."

11 As Justice Thomas discussed in his Lewis concurring

opinion, this Court has not “engaged in a rigorous

The Court’s Lewis decision strikes a constitutionally-

rooted balance between the safe and orderly administra-

tion of prisons and the ability of inmates to initiate cer-

tain types of judicial proceedings. See Lewis, 518 U.S. at

350. The Ninth Circuit’s approach, however, upsets this

balance by expanding greatly the access-to-courts right

through an additional restriction on prison administra-

tors’ authority; i.e., inmates like Respondent giving “legal

advice” can couch retaliation or other claims as a viola-

tion of First Amendment rights and thereby avoid the

need to show the far more stringent elements of a viable

access-to-courts cause of action. Such a result makes no

sense because, to the extent “legal advice” may have a

value independent of other speech, that value is pro-

tected adequately by the access-to-courts doctrine. Any

limitation on a prison’s authority with respect to control-

ling inter-prisoner communications over “legal advice”

constitutional analysis of the basis for the asserted right” of

access to the courts (518 U.S. at 367), but it appears such right

emanates from the First Amendment's Petition Clause or the

Fourteenth Amendment's Due Process or Equal Protection

Clauses. Compare id. at 381 (Thomas, J., concurring) (identifying

the Due Process Clause as the apparent source), with id. at 405

(Stevens, J., dissenting) (identifying the Petition Clause as a

principal source); see also Hudson v. Palmer, 468 U.S. 517, 523

(1984) (“[l]ike others, prisoners have the constitutional right to

petition the Government for redress of their grievances, which

includes a reasonable right of access to the courts”). This issue,

as well as the relationship between Speech and Petition Clause

standards where an access-to-courts claim is involved, need not

be resolved since, as discussed infra at 44, no such claim could

be advanced here. See McDonald v. Smith, 472 U.S. 479, 485

(1985).

accordingly should come from application of that doc-

trine, not from the new right conjured out of the First

Amendment by the Court of Appeals. Cf. Walters v.

National Ass'n of Radiation Survivors, 473 U.S. 305, 335

(1985) (First Amendment claim “ha[d] no independent

significance” in view of the rejection of a due process

claim when the latter claim “focused on substantially the

same question — whether the process allow[ed] a claimant

to make a meaningful presentation”). Indeed, the Ninth

Circuit has done precisely what the Lewis Court stated

Bounds did not do: Create a freestanding right to receive

legal assistance by creating the right to give such assis-

tance.

The insufficiency of Respondent's access-to-courts

claim is apparent from the undisputed facts. First,

Respondent does not allege that he has been denied

access to the courts and thus could claim only his rela-

tionship to Tracy as a basis for the doctrine’s application.

This case, however, cannot be analogized to Johnson

where a “writ-writer” secured relief from sanctions

imposed for assisting other prisoners who had no other

means to access the courts. Johnson, 393 U.S. at 487. Tracy,

moreover, had a court-appointed, Montana-licensed

attorney to represent him in the criminal proceedings.

Even he therefore would have lacked standing under

Lewis standards. Lewis, 518 U.S. at 351.

Second, the criminal proceeding against Tracy fell

outside the reach of the access-to-courts doctrine. See

Lewis, 518 U.S. at 355. Tracy was haled into court by the

State on criminal charges and provided counsel. His

plight was not that of an unaided inmate seeking to

invoke the judicial process with the objective of attacking

an existing sentence or condition of confinement but

denied the “tools” to do so.

The Court of Appeals, in sum, has asked the First

Amendment to do the work of the access-to-courts doc-

trine. In so doing, the Ninth Circuit upsets the balance

struck by this Court in that doctrine. The Court should

reject the suggestion that the First Amendment immu-

nizes Respondent’s communications simply because they

purported to give “legal advice” to a fellow inmate.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be reversed.

Respectfully submitted,

JoserH P. Mazurex

Attorney General

Davip L. OHLER*

DIANA $ LEeIBINGER-KocH

Special Assistant Attorneys

General

1539 Eleventh Avenue

P.O. Box 201301

Helena, MT 59620

(406) 444-5682

Counsel for Petitioners

*Counsel of Record

November 2000

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.