Reply Brief — Shaw v. Murphy

Dec 24 , 2002

(1! ) DEC 29 2M

No. 99-1613 | _ OFFICE OF TH CLERK

In The

Supreme Court of the United States

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ROBERT SHAW; LARRY BEARLEY;

MICHAEL MAHONEY; MYRON BEESON;

AND RICHAF.) S. DAY,

Petitioners,

KEVIN MURPHY,

Respondent.

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On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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REPLY BRIEF FOR PETITIONERS

¢

JosepH P. Mazurek

Attorney General of Montana

Davip L. OHLER*

DiaNA LeIBINGER-KocH

Special Assistant Attorneys General

1539 Eleventh Avenue

P.O. Box 201301

Helena, MT 59620

(406) 444-5682

Counsel for Petitioners

“Counsel of Record

QUESTION PRESENTED

Does the First Amendment to the United States Con-

stitution grant a state prison inmate an independent and

free-standing 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?

il

TABLE OF CONTENTS

Page

CURSTION PIRES CU ED oc cccdcceccccccsesssueneen i

ry € fe Pity, ¢ 5) re iii

TT Bee co coc ccccseecceseceees eee 1

POITIERS oo oc ccccccccsesdeeeneeceseenenne 3

I. RESPONDENT RAISES NO SUBSTANTIAL

BASIS UPON WHICH TO SUSTAIN THE

NINTH CIRCUIT'S “LEGAL ADVICE” PRIVI-

LEGE UNDER THE FIRST AMENDMENT.... 3

Il. RESPONDENT’S ACCESS-TO-COURTS

ANALYSIS MERELY REINFORCES THE CON-

CLUSION THAT, IF ACCEPTED, THE NINTH

CIRCUIT’S FIRST AMENDMENT-BASED

“LEGAL ADVICE” PRIVILEGE WOULD

OVERRIDE THE BALANCE STRUCK BY THIS

COURT BETWEEN PRISON AND PRISONER

ENTERED EO. oc ccccccccccccessecesenseeeeneen 11

CONCLUSION 2c ccccccccccccccccccscsccssueneeuene 16

— ~-e

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see

TABLE OF AUTHORITIES

Page

Cases

Bounds v. Smith, 430 U.S. 817 (1977)............. 13, 14

Brady v. Maryland, 373 U.S. 83 (1963)............... 15

Gilmore v. Lynch, 319 FSupp. 105 (N.D.Cal. 197) (per

curiam), aff'd per curiam, 404 U.S. 15 (1971) ...... 13, 14

In re Primus, 436 U.S. 412 (1976) ..............00455. 3

Johnson v. Avery, 393 U.S. 483 (1969) ............... 14

Jones v. North Carolina Prisoners’ Labor Union,

EEE ee 3, 7

Lewis v. Casey, 518 U.S. 343 (1996) .............. 12, 13

NAACP v. Button, 371 U.S. 415 (1963) ............... 3

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)..... 5

Procunier v. Martinez, 416 U.S. 396 (1974)..... 9, 12, 13

State v. Cartwright, 650 P.2d 758 (Mont. 1982)........ 7

State v. Hanson, 940 P.2d 1161 (Mont. 1997)......... 15

Strickland v. Washington, 466 U.S. 668 (1984) ....... 15

Superintendent v. Hill, 472 U.S. 445 (1985)........... 4

Thornburgh v. Abbott, 490 U.S. 401 (1989) ..... 5, 9, 13

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

FepeRAL MATERIALS

United States Constitution

EEE ESS OES EPEC TTTTTTT ETT TTT TT passim

iv

TABLE OF AUTHORITIES - Continued

Page

MONTANA MATERIALS

Montana Code Annotated § 45-3-102 (1999) .......... 7

Montana Code Annotated § 46-21-101, et seq.

PPrrrrrrrrrrrrrrrrrrrrr rrr rrr try 15

Montana Code Annotated § 46-21-103 (1995) ........ 15

INTRODUCTION

Respondent's brief brings to mind the adage about

exercising care over what one asks for. In the complaint,

Respondent sought a broad declaration against Peti-

tioners’ “practice of disciplining inmate law clerks based

on the content of their advice to other inmates.” J.A.

67-68. The Ninth Circuit agreed, holding that, “the provi-

sion of legal assistance to fellow inmates” was a specially

protected First Amendment right to which the Montana

State Prison’s discipline policy could have no application.

Pet. App. 2; see also Pet. App. 9 (“legal activities on behalf

of other inmates implicate[s] associational rights pro-

tected by the First Amendment”). The Court of Appeals

thus fashioned a right that is not limited to “inmate law

clerks” but extends to any inmate purporting to give

“legal advice.”

In his brief, however, Respondent takes a different

tack, characterizing this case as an as-applied challenge

to the discipline meted out to him for the communication

of facts allegedly material to an ongoing criminal pro-

ceeding. See, e.g., Br. Resp. at 17, 30. He argues further

that his conduct should not have been characterized as

“Insolence” under Rule 009 or “Interference with Due

Process Hearings” under Rule 022. Id. at 20-23. The latter

analysis is curious because Respondent argues that com-

munications related to such “material facts” are immune

from application of the disciplinary policy. In effect,

Respondent merely substitutes his version of a categori-

cal privilege immunizing inmate conduct from otherwise

neutral prison disciplinary regulations for the “legal

advice” privilege adopted by the Ninth Circuit.

Respondent’s discomfort with the Ninth Circuit's

“legal advice” privilege is understandable since, while he

secured a result favorable to his interests, the decision

embodies a rule of law that cannot be justified under this

Court’s First Amendment speech or associational right

decisions. Respondent concedes as much and makes no

effort to justify the Court of Appeals’ analysis. Br. Resp.

at 9 (“[w]Jhatever we may say about the reasoning of the

lower court in resolving [whether the Respondent was

disciplined validly], its judgment was correct”). No less

unmeritorious, moreover, is his alternative “inmate wit-

ness” or “material facts” privilege, suggested for the first

time before this Court.

Respondent's access-io-courts analysis is equally

problematic. First, contrary to what might be inferred

from his argument, the merits of Respondent's access-to-

courts claim are not before this Court. The access-to-

courts doctrine is instead relevant because the Ninth

Circuit’s newly-minted First Amendment right upsets the

balance this Court has struck in its access-to-courts juris-

prudence between the interest of prisons in safe, orderly

administration of inmate populations - an undertaking

that this Court has recognized to be both difficult and

subject to deferential review by courts - and the interest

of prisoners to participate in the legal process with

respect to a quite limited class of proceedings directly

relevant to the validity or conditions of their confine-

ment. Second, a review of Respondent’s arguments con-

cerning the doctrine merely underscores how

significantly the Ninth Circuit’s “legal advice” privilege

expands upon this Court’s decisions.

e

ARGUMENT

I. RESPONDENT RAISES NO SUBSTANTIAL BASIS

UPON WHICH TO SUSTAIN THE NINTH CIR-

CUIT’S “LEGAL ADVICE” PRIVILEGE UNDER

THE FIRST AMENDMENT.

The Court of Appeals drew its “legal advice” privi-

lege out of the First Amendment through application of

the standard enunciated in Turner v. Safley, 482 U.S. 78

(1987). Pet. App. 10-11. Respondent, however, makes no

attempt to vindicate the First Amendment right created

by the Ninth Circuit. Instead, he employs Turner to estab-

lish that communications from a potential witness related

to an ongoing criminal proceeding are immune from the

Prison’s disciplinary policy. Br. Resp. at 18-27. This is a

new theory, wholly unrelated to that advanced in the

complaint, but it suffers from precisely the same flaws as

the Ninth Circuit’s opinion.

1. Respondent begins his substantive analysis with

a discussion of First Amendment decisions, including In

re Primus, 436 U.S. 412 (1976), and NAACP v. Button, 371

U.S. 415 (1963), concerned with speech or associational

activities in connection with litigation. Br. Resp. at 12-13.

- These decisions, as he immediately acknowledges, have

no relevance to the outcome here because they arose in a

non-prison context. See also Br. Pet’rs at 37 n.10 (distin-

guishing inmate and non-inmate access-to-courts deci-

sions). Where prisons and prisoners are involved, this

Court applies a multi-factor reasonableness standard

aimed at resolving the question whether the challenged

regulation “is reasonably related to legitimate penological

interests.” Turner, 482 U.S. at 89. Indeed, in Jones v. North

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

this Court rejected a challenge to prison regulations

based on the free speech and associational rights compo-

nents of the First Amendment to hold that, “an inmate

does not retain those First Amendment rights that are

‘inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections sys-

tem’”. Id. at 129. Respondent freely admits the facial

validity of Rules 009 and 022, i.e., the Montana disciplin-

ary regulations, under which he was sanctioned. [“Mur-

phy did not challenge the Rules on their face”]. Br. Resp.

30. There is consequently no dispute that those rules,

including Rules 009 and 022, satisfy Turner’s reasonable-

ness standard.

Implicit in Respondent’s admission is the recognition

that, to the extent any statement in the letter to Tracy

constituted “insolence” or an “interference with a due

process hearing,” they would be cause for discipline as an

ordinary matter. Respondent argues at length that noth-

ing in the letter met the elements of the offenses specified

in Rules 009 and 022 (Br. Resp. at 20-22), but those argu-

ments beg the more critical question presented by

Respondents’ Complaint and presented to this Court of

whether, even if the statements in the Tracy letter con-

cededly violated the rules, the disciplinary policy could

be applied. That is the question the Ninth Circuit

answered in its Turner discussion and Respondent assidu-

ously avoids in his corresponding treatment of Turner.

Petitioners’ analysis under Turner with respect to the

issue that was decided below - whether “legal advice” is

immune from the disciplinary policy’s application — thus

stands unrebutted. See Br. Petr’s at 28-36.

On a related point, Petitioners disagree with amicus

curiae United States’ suggestion that, should the Court of

Appeals’ determination concerning the special First

Amendment status of “legal advice” be reversed,

reweighing under the Turner standards would be appro-

priate. Br. United States Amicus Curiae at 29-30. Given

Respondent's repeated acquiescence in the facial legit-

imacy of Rules 009 and 022 for Turner purposes, First

Amendment concerns dissipate once the Ninth Circuit's

“legal advice” privilege is removed from consideration.

That is, because Rules 009 and 022 admittedly contain

“neutral” standards of the type required by Turner and

subsequent precedent, the rules can be applied to inmate

speech without First Amendment embarrassment so long

as such application is consistent with their terms. See

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

(“[wJhere, as here, prison administrators draw distinc-

tions between publications solely on the basis of their

potential implications for prison security, the regulations

are ‘neutral’ in the technical sense in which we meant and

used that term in Turner”).

The United States’ reliance on the remand order in

Thornburgh that application of the facially sustained rule

to the publications at issue be considered does not man-

date, in Petitioners’ view, individualized reweighing

under the Turner standards. The very objective of prison

rules is to establish measures of permissible conduct, and,

once those measures have been found or admitted to be

constitutionally valid under the Turner standards, ad hoc

reweighing would be superfluous absent, as here, some

claimed exception to the obligation to comply at all with

a particular rule. See O’Lone v. Estate of Shabazz, 482 U.S.

342 (1987) (challenge by prisoners of Islamic religion to

comply with rule restricting return to main prison build-

ing during work gang shifts). As discussed infra, Respon-

dent has not pursued a due process claim predicated on

the absence of a sufficient factual basis for Petitioner

Bearley’s and Mahoney’s determinations. Reconsidera-

tion of the propriety of his discipline on remand under

the Turner standards is therefore unnecessary.

2. Respondent nonetheless advances various con-

tentions during his discussion of the Turner consider-

ations that merit comment. First, in arguing the absence

of any legitimate penological interest in sanctioning him

because of statements in the Tracy letter, Respondent

states that, “[b]y stretching its Disciplinary Rules to fit

Murphy’s letter, Montana State Prison extended its

authority into the court room where it has no interest in

order and discipline.” Br. Resp. at 17. “The interests trig-

gered by [his] letter,” Respondent adds, “were judicial

and evidential.” Id. at 18. However, the penological inter-

est underlying the disciplinary rules is preventing and, if

appropriate, punishing prison conduct deemed inimical

to institutional order and safety. J.A. 6 [“Inmate Disciplin-

ary Policy,” “Objective: To provide a means of maintain-

ing discipline and enforcing necessary rules within the

institution.”]. Respondent's position thus proves far too

much, since even admittedly false statements of fact

related to a pending or anticipated judicial proceeding

would fall outside the Prison’s ability to discipline - a

conclusion he readily endorses - because conduct that

violated those rules would be immune from punishment

if it could be characterized (even falsely) as “legal

advice.” Br. Resp. at 16 (“[dJetermining the truthfulness

7 ——_

——

2 Kem -

7

of the information proffered by Murphy for use in a court

proceeding was a judicial, not a penological, function”). It

further means that his later discussion directed to

whether he violated Rules 009 and 022 is as immaterial

under his theory as it is under the Ninth Circuit’s. In any

event, Respondent’s remarkable assertion cannot be

squared with this Court’s repeated admonition that

“ “prison administrators . . . , and not the courts, [are] to

make the difficult judgments concerning institutional

operations.’ ” Turner, 482 U.S. at 89 (quoting Jones, 433

U.S. at 128).

Respondent's related argument that his letter to

Tracy implicates “[t]he right to participate in the [latter’s]

trial” (Br. Resp. at 28) and that, therefore, “(t]he witness's

interest in giving testimony should be regulated by the

court, not by the Prison through its imposition of punish-

ment” (Id. at 29) is similarly flawed. Even if one indulges

the generous assumption that Respondent had anything

material to Tracy’s prosecution to testify about, since

nothing in the record below suggested that any of the

factual allegations in the letter were relevant to Tracy’s

defense, no decisional support exists for the proposition

that prison administrators are precluded from initiating

disciplinary proceedings based on neutral rules of con-

duct merely because those proceedings relate to state-

ments of alleged fact by a potential inmate witness.!

* Under Montana law, for example, “the accused must first

lay a foundation that he acted in self-defense before he can

introduce evidence of the character of the victim.” State v.

Cartwright, 650 P.2d 758, 764 (Mont. 1982). Nothing in the record

remotely suggests that Tracy acted in self-defense. See Mont.

Code Ann. § 45-3-102 (1999) (specifying when use of force in

defense of person is permitted).

Indeed, accepting Respondent’s position would substi-

tute in practical effect a categorical “inmate witness”

immunity from prison discipline for the Ninth Circuit's

categorical “legal advice” privilege. The scope of the

“inmate witness” privilege proposed by Respondent,

moreover, may be even broader than protecting commu-

nications from potential witnesses, since he argues at the

conclusion of his brief that “[t]his Court should hold

... that when Prison officials act . . . to prevent communi-

cation of material facts to an accused or her attorney, they

violate the First and Sixth Amendments and the right of

access.” Id. at 38. Persons other than potential witnesses

presumably may have knowledge of “material facts.” It

thus might be more accurate to describe Respondent's

alternative to the Ninth Circuit’s holding as the “material

facts” privilege. However characterized, it is no more

justifiable under controlling First Amendment speech or

right-of-association principles than the Ninth Circuit's

“legal advice” privilege.?

Second, Respondent's parsing of Rules 009 and 022 to

establish his claimed innocence of their violation (Br.

Resp. at 20-23) is immaterial not only because he sees no

legitimate penological interest implicated by any inmate-

to-inmate communications concerning judicial proceed-

ings but also because he did not challenge the sufficiency

2 Although Respondent makes his Turner-based argument

with reference to the redefined privilege, the outcome here is

unaffected by whether the “inmate witness” or “material facts”

privilege is used in lieu of the Ninth Circuit’s “legal advice”

privilege. The Prison’s penological interest is the same as to

both, as are the most significant considerations with respect to

application of the four Turner factors.

—_——~ - -—— —_—

_——— i rg

|

of the evidence supporting the Prison’s determinations.

See Superintendent v. Hill, 472 U.S. 445 (1985). His district

court complaint thus sought declaratory relief under the

Due Process Clause only with respect to the rules’ alleged

vagueness (J.A. 67), and none of the lower courts’ deci-

sions identified a due process claim directed to evidenti-

ary sufficiency as an issue. Respondent thus abandoned

any such claim.

Third, the contention that Respondent had no alterna-

tive means of conveying the information in the Tracy

letter or, presumably, “legal advice” generally, without

fear of sanctions is speculative and wrong. Br. Resp. at

23-24; see also id. at 27 (“[hJad Murphy included the same

statements in a letter to the press, he would have been

subject to the same sanctions”). If he had sent the letter to

Tracy’s attorney or to other persons outside the Prison, it

would not have been opened. MSP 16-001, §§ I.B.2, II.B.4

(J.A. 35, 36).3 Finally, as Respondent admits (Br. Resp. at

21), nothing precludes a prisoner from complaining about _

a correctional officer’s conduct through the medium of a

grievance. MSP Policy 15-001, Procedures § B, Rule 022

(J.A. 14).

3 Moreover, a more stringent standard of review exists as to

whether the disciplinary rule policy may be applied to outgoing

correspondence regardless of its content. Procunier v. Martinez,

416 U.S. 396, 413-14 (1974); see Thornburgh, 490 U.S. at 413 (“[t}he

implications of outgoing correspondence for prison security are

of a categorically lesser magnitude than the implications of

incoming materials”).

10

Fourth, that prison employees review inmate-to-

inmate mail * and, as here, may initiate disciplinary pro-

ceedings based on matters discussed in the correspon-

dence does not mean, as Respondent supposes, that

determining whether a particular letter contains “advice

material to an inmate’s criminal case” will not impose

any additional burden. Resp. Br. at 25. Petitioners dis-

cussed in their opening brief the difficulties that may

attend distinguishing “legal advice” from other types of

content. Br. Petr’s at 33-35. Respondent is hardly clear

himself on this issue, characterizing the letter to Tracy in

the opposition to the petition as “witness language, not

lawyer language” (Br. Opp’n Pet. Writ Cert. at 4) and then

arguing in his merits brief that the letter “attempted to

bring a potential defense to Tracy’s attention” (Br. Resp.

at 36). Indeed, under Respondent's view, prison officials

would be prohibited from evaluating whether a pris-

oner’s bald claim that a letter contained “legal advice”

was false because, according to Respondent, such deter-

minations are “judicial” not “penological.” (Br. Resp. at

16). Given the uncertain line that separates legal from

non-legal speech, much less “material” from “imma-

terial” speech related to a legal proceeding, Respondent

has not carried his burden of showing that the need to

cull out “legal advice” will impose no more than a de

minimis burden. See Turner, 482 U.S. at 93.

4 The Respondent and Amici for Respondent mischar-

acterize the Prison’s policy as permitting inmate

correspondence between all inmates generally. The evidence in

the record demonstrates that only inmate law clerks, not ail

inmates, are permitted to correspond with inmates in the

Maximum Security Unit. (J.A., p. 87).

11

Il. RESPONDENT’S ACCESS-TO-COURTS

ANALYSIS MERELY REINFORCES THE CON-

CLUSION THAT, IF ACCEPTED, THE NINTH

CIRCUIT’S FIRST AMENDMENT-BASED

“LEGAL ADVICE” PRIVILEGE WOULD

OVERRIDE THE BALANCE STRUCK BY

THIS COURT BETWEEN PRISON AND PRIS-

ONER INTERESTS.

The Ninth Circuit did not reach Respondent’s access-

to-courts claim. Pet. App. 15. Petitioners nonetheless

viewed that doctrine’s scope as germane to resolving the

question whether the lower court erred in creating a

freestanding “legal advice” right under the First Amend-

ment. Br. Petr’s at 41-45; see also Br. United States Amicus

Curiae at 15-19; Amicus Curiae Br. States Florida et al. at

4-6; Br. Amicus Curiae Crim. Justice Legal Found. at 5-8.

The doctrine’s relevance additionally was discussed in

the petition. Pet. Writ Cert. at 18-19.

That said, the actual merits of Respondent's access-

to-court claim are not before this Court because that issue

is not encompassed within the question presented. Peti-

tioners therefore treat his arguments as addressed to

whether the Ninth Circuit’s “legal advice” privilege

expands the access-to-courts doctrine presently marked

out by this Court and thereby serves to interfere with that

doctrine’s attempt to balance the interest possessed by

prison administrators in institutional order and security

and the interest of the incarcerated in contesting their

incarceration or the conditions attendant to it. Whether

the doctrine should be expanded must be left for another

day when the merits of Respondent’s or a similarly-

12

situated inmate’s access-to-courts claim are before the

Court.

Respondent’s arguments regarding the access-to-

courts doctrine is contrary to controlling precedent. He

contends that the term “right of access to the courts”

constitutes “a shorthand for two unrelated sets of circum-

stances” with corresponding duties. Br. Resp. at 33. The

first of these “sets of circumstances” imposes on prison

administrators “a duty of non-interference with a pris-

oner’s right to defend against criminal charges,” while

the second requires them “to ensure that a prisoner may

bring post-conviction relief petitions and challenges to

the prisoner’s conditions of confinement.” Id. at 11.

Respondent's discipline is alleged to have violated the

first duty. Id. at 34. Such a reconfiguration of the access-

to-courts doctrine cannot be squared with this Court's

decisions.

Respondent cites no apposite authority either for his

proposed bifurcation of the access-to-courts doctrine into

two “prongs” (Br. Resp. at 11) or for the more general

notion that, in a penal incarceration context, it extends

beyond providing “tools . . . inmates need to attack their

sentences, directly or collaterally, and in order to chal-

lenge the conditions of their confinement.” Lewis v. Casey,

518 U.S. 343, 355 (1996). Indeed, the Court in Casey held

that the “[i]mpairment of any other litigating capacity is

simply one of the incidental (and perfectly constitutional)

consequences of conviction and incarceration.” Id. at 355.

Respondent's reliance on Procunier v. Martinez, supra,

for the first of those prongs is plainly mistaken. That case

was concerned with, in relevant part, a ban on the use of

—_——_——_ ee _—_————————

aca

13

law students and paraprofessionals to conduct client

interviews on behalf of attorneys representing inmates.

416 U.S. at 419. This Court concluded that the prohibition

“inhibited adequate professional representation of indi-

gent clients” and was not otherwise justified under the

“necessary to the furtherance of an important or substan-

tial governmental interest” standard of review estab-

lished in that decision and subsequently revisited in

Turner and Thornburgh. Martinez, 416 U.S. at 420. As dis-

cussed in Petitioners’ principal brief and reiterated in

Part I above, the Ninth Circuit’s “legal advice” privilege

does not withstand scrutiny under the Turner standards.

Respondent's suggestion that Martinez supports extend-

ing the access-to-courts doctrine to ongoing criminal

prosecutions against prisoners represented by counsel

also fails to account for the Court’s statement there that

“[t]he constitutional guarantee of due process of law has

as a corollary the requirement that prisoners be afforded

access to the courts in order to challenge unlawful convic-

tions and to seek redress for violations of their constitu-

tional rights.” Id. at 419. Martinez thus is consistent with

Lewis and Bounds v. Smith 430 U.S. 817 (1977), as to the

doctrine’s reach. Under the most straightforward of lin-

guistic analyses, a prisoner who has been summoned into

court for the purpose of defending against criminal

charges can hardly argue that he is being denied access to

the courts.5

5 No less unavailing is Respondent's reliance on Gilmore v.

Lynch, 319 F. Supp. 105 (N.D. Cal. 1970) (per curiam), aff'd per

curiam, 404 U.S. 15 (1971). Br. Resp. at 34. Gilmore involved a

claim that the California Department of Corrections failed to

provide adequate “access to law books, legal materials, and lay

14

Lastly, Respondent's discussion of standing to main-

tain an access-to-courts claim is notable for its introduc-

tory statement that his status, or “role,” as an inmate

legal clerk, while “not critical to the resolution of the free

speech issue, . . . is necessary to the access to the courts

issue.”® Br. Resp. at 34. If that assertion is accepted for

argument purposes, it concedes Petitioners’ position that

the Ninth Circuit’s decision, aside from enlarging the

reach of the access-to-courts doctrine beyond challenges

to existing sentences and confinement conditions,

increased the class of prisoners who can assert claims

under the court’s new constitutional rule since the “legal

advice” privilege is not restricted to inmate legal clerks.

assistance in preparing prisoner writs and complaints.” Id. at

107. To the extent the district court there construed the access-

to-courts doctrine as including “all the means a defendant or

petitioner might require to get a fair hearing from the judiciary

on all charges brought against him or grievances alleged by

him,” it associated the right in a criminal proceeding with

appointment of counsel. Id. at 110. Tracy, of course, had counsel.

This Court in Bounds referred to its summary affirmance of

Gilmore but did not suggest that the access-to-courts right it

applied extended to proceedings other than challenges to

existing sentences or conditions of confinement. Bounds, 430

U.S. at 828-29.

® Contrary to Respondent’s argument that interests of law

clerks and their “clients” are coterminous, Br. Resp. 35, this

Court has recognized that the interests of inmate “law clerks”

and the inmates that they purportedly serve can diverge widely.

See, Johnson v. Avery, 393 U.S. 483 (1969) [noting that jailhouse

lawyers “are sometimes a menace to prison discipline”); Id. at

488 (“Codes of ethics, champerty, and maintenance, frequently

have little meaning to a jailhouse lawyer, who solicits business

as vigorously as he can.” (White, J., with Black, J., dissenting)];

Id. at 500.

15

The same must be said about Respondent's “inmate wit-

ness” or “material facts” privilege. Beyond this funda-

mental difficulty with Respondent’s standing argument

lies the unique factual circumstances here - i.e., his

attempt to assert what he admits is “the assisted inmate's

right of access” (id. at 35) when Tracy had an appointed

counsel who labored under a Sixth Amendment-based

duty to provide effective representation. See, e.g., Strick-

land v. Washington, 466 U.S. 668, 687 (1984); State v.

Hanson, 940 P.2d 1161, 1172-73 (Mont. 1997). Not only

must it be presumed, in the absence of a contrary show-

ing below, that Tracy’s attorney conducted a reasonable

investigation before his client entered into a plea agree-

ment, but there was also no indication that Tracy, once

informed of the letter’s content, deemed it appropriate to

initiate postconviction proceedings under Montana law

alleging either a violation of the prosecution’s obligation

to disclose exculpatory material pursuant to Brady v.

Maryland, 373 U.S. 83 (1963), or ineffective assistance of

counsel. See Mont. Code Ann. § 46-21-101 to -203 (1995).7

Respondent's contention that he is a proper party to

advance Tracy’s alleged right of access to the courts -

which Respondent urges arises in part under the Sixth

Amendment (Br. Resp. at 34) - when Tracy has elected

7 At the time this controversy arose, Montana law required

postconviction relief proceedings to be initiated within five

years of conviction. Mont. Code Ann. § 46-21-103 (1995). Tracy’s

affidavit in the proceeding below indicates that he received a

copy of the February 1995 letter in June 1996. Aff. Pat Tracy { 11

(J.A. 84). Respondent’s apparent suggestion that Tracy’s ability

to challenge the conviction arising from his plea agreement was

affected in some fashion by Petitioners’ conduct is thus

groundless. See Br. Resp. at 29.

16

not to do so himself is fraught with difficulty that his

brief fails to address. That difficulty, however, is absent

from the “legal advice” privilege because the First

Amendment right lying at its core is shared by both

Respondent and Tracy.

¢

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

JoserH P. Mazurek

Attorney General

Davip L. OHLeR*

Diana LeIBINGER-KOCcH

Special Assistant Attorneys General

1539 Eleventh Avenue

P.O. Box 201301

Helena, MT 59620

(406) 444-5682

Counsel for Petitioners

*Counsel of Record