Opposition Brief — Angelone v. Montcalm Publishing Corp.

%)\ Supreme Court, U.S.

05 raw & 2

NO. 96-156 MG eS 1%

In The CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1996

EDWARD MURRAY, in his official capacity as Director

of the Virginia Department of Corrections (VDOC);

JOHN DOE, 1-7, in their official capacities such

fictitious names being designated to identify those

VDOC employees whose true identities are now

unknown to plaintiff-intervenor, but who serve as (a)

members of the VDOC Publication Review Committee,

(b) Warden or Superintendent of Keen Mountain

Correctional Center (KMCC), and (c) functional KMCC

mailroom censor,

Petitioners,

Vv.

MONTCALM PUBLISHING CORPORATION,

Respondent.

Petition For A Writ Of Certiorari To

The United States Court Of Appeals

For The Fourth Circuit

BRIEF IN OPPOSITION

Maryanne B. Orenstein

Counsel of Record

ORENSTEIN & ORENSTEIN, P.C

Keith S. Orenstein

Jeffrey Niederhoffer

635 Madison Avenue

New York, New York 10022

(212) 754-6300

Attorneys for Respondent

Question Presented

‘. Whether Virginia Department of

Corrections Operating Procedure 852 is

unconstitutional because it fails to provide a publisher

with notice that its publication has been disapproved

for receipt by the subscribing inmate and with an

opportunity to submit a brief written response thereto.

‘i

Statement of No Parent or Susidiary Companies

In compliance with Rule 29-.6 of the Rules of

Court, respondent states that there are no parent

companies or nonwholly owned subsidiary companies

of Montcalm Publishing Corporation to be listed.

Table of Contents

Page

EL SP INEEIOUD icbacnccubtconpuccaesbiewsacones i

Statement of No Parent or Subsidiary Companies ii

AEE Oe PRIMER ca occassosevceasssevenssecessvess Vv

Constitutional Provisions, Statutes

Re CEIIEE enviccdesnccrenscrasevsescrtesseos ]

RMORRTOEIEE HE TENE CABS 2... 2csecccccvacsccsoscensvees 2

ie EN adhe cds ctecasdersraconucpatnccensse 2

ie PP RRED SOC METOUNE, cca ncenssvccecsersncencases 3

Summary of the Argument ....................006 7

Reasons For Denying The Writ .................. 8

A. The Fourth Circuit correctly held that

respondent was entitled to notice and an

opportunity to be heard when its publications

are disapproved for receipt by its

TIED Sricnenssnccensscnsconsdecenesss 8

B. The Fourth Circuit did not err in rejecting

without comment petitioner’s argument that

respondent lacks standing to seek

declaratory relief and that no Article III

case or controversy CXiIStS .............ccccccceee 14

Ce pe danwenas 19

iv

Table of Contents (cont’d)

Appendix A Memorandum Opinion and Order

of Chief Judge Jackson L. Kiser Al

Appendix B Defendants’ Objections to the

Magistrate Judge’s Report and

Recommendation .................. A7

Vv

Table of Authorities

Page

Cases

Berg v. Commander, Fifth Coast Guard

District, 810 F.Supp. 703

(E.D.Va. 1992), affd,

27 F.3d 562 (4th Cir. 1994) ............ccscccsscee 12

Blount v. Rizzi, 400 U.S. 410 (1971) «0.0... ee. 12

Bosley v. Baltimore County, Maryland,

804 F.Supp. 744 (D. Md. 1992),

affd, 986 F.2d 1412

PE a SUUIED sciasshtivteaccineddcecseviadesbsovenenaniins 12

City of Los Angeles v. Lyons,

PE RA Ae SIE sdphinsins sdcecorutbettibbvictenen 16, 18

Cofone v. Manson, 409 F.Supp. 1033

SE Pin SUEDE chiadicudenaninnsicshenkebidomdiiiaebbebiees 10 n.2

Jones v. North Carolina Prisoners’ Labor Union,

UF Sb: BA TE cachchaacinceakedetagiaplonchsenens 17

Lawson v. Dugger, 840 F.2d 781 (11th Cir. 1987),

vacated, 490 U.S. 1078 (1989), on remand,

897 F.2d 536 (11th Cir. 1990), on remand,

844 F.Supp. 1538 (S.D. Fla. 1994) ............. 13 n.4

Leis v. Flynt, 439 U.S. 438 (1979) ............:cceceeeeeeeees 12

Mathews v. Eldridge,

424 U.S. 319 (1976) ............. 11, 12, 13, 13 n.3

Multimedia Publishing Company of

South Carolina, Inc. v.

Greenville-Spartanburgh Airport Dist.,

774 F.Supp. 977 (D.S.C. 1991), affd

in part and vacated and remanded in part,

991 F.2d 154 (4th Cir. 1992) .........ccccccsoscoses 17

Table of Authorities (cont'd)

Page

Cases

Procunier v. Martinez,

Re Sh SU ER UTE pastieskticddianianidpcidieunnianna 8,13

Propert v. District of Columbia,

O48 F.2d 1327 (D.C. Cir. IBB1) .....cccccconsseses 12

Richardson v. Town of Eastover,

922 F.2d 1152 (4th Cir. 1991) ..................... 12

Ross v. Meese, 818 F.2d 1132

DI Rett SNE E ca ceneidinevtacebneehivcekginhcatanaecbiaeen 17

Scelsa v. City University of New York,

806 F.Supp. 1126 (S.D.N.Y. 1992) .............. 17

Thomburgh v. Abbott,

490 U.S. 401 (1989) .................... 8, 10 n.2, 13n.3

United States for the Use of Pensacola

Construction Co. v. St. Paul Fire and

Marine Insurance Co., 705 F.Supp. 306

FOE: Calls. SONU ai vickl odupedinceinicsanaiibeknivetetaeecies 17

United States v. State of Michigan,

508 F.Supp. 480 (W.D. Mich. 1980),

affd, 712 F.2d 242 (6th Cir. 1983) .............. 17

White v. National Union Fire Insurance

Company of Pittsburgh, Pa., 913 F.2d 165

ERE COIR; RIP csicichcckshexconessincescensidessaamioiin 17

Constitutional Provisions, Statutes and Rules

NO. 96-156

In The

SUPREME COURT OF THE’ UNITED STATES

October Term, 1996

EDWARD MURRAY, in his official capacity as Director

of the Virginia Department of Corrections (VDOC);

JOHN DOE, 1-7, in their official capacities such

fictitious names being designated to identify those

VDOC employees whose true identities are now

unknown to plaintiff-intervenor, but who serve as (a)

members of the VDOC Publication Review Committee,

(b) Warden or Superintendent of Keen Mountain

Correctional Center (KMCC), and (c) functional KMCC

mailroom censor,

Petitioners,

v.

MONTCALM PUBLISHING CORPORATION,

Respondent.

Petition For A Writ Of Certiorari To

The United States Court Of Appeals

For The Fourth Circuit

BRIEF IN OPPOSITION

Constitutional Provisions, Statutes and Rules

Involved

This case involves the straightforward applica-

tion of the Due Process clause of the Fourteenth

Amendment to the United States Constitution to

Virginia Department of Corrections Division Operating

Procedure 852 (henceforth DOP 852), which does not

2

provide for notice to and an opportunity to be heard

by a publisher whose publication has been disap-

proved for distribution to an inmate-subscriber.

Statement of the Case

A. Introduction

Virginia prison officials are authorized by

regulation, promulgated by the VDOC pursuant to

authority granted by Section 53.1 - 35 of the Code of

Virginia, see DOP 852 § II, to deny inmates access to

certain written publications to which they have

specifically subscribed. That regulation provides in

relevant part as follows:

The Warden/Superintendent, or

his designee, will disapprove a publica-

tion for receipt and possessior by an

inmate on grounds of obscenity if:

i. The publication depicts or

describes sexual conduct in such a way

to include, either:

a. Representations or descrip-

tions of actual sexual intercourse, normal

or perverted, anal or oral; or,

b. Representations or descrip-

tions of excretion in the context of sexual

activity or lewd exhibitions of uncovered

genitals in the context of masturbation or

other sexual activity; and

2. A reasonable person viewing

3

the depiction or representation would

find that the material taken as a whole

appeals to a prurient interest in sex.

DOP 852 § VIII.D. (emphasis added). Section VII.A.

provides that “[t]he Warden/Superintendent of each

facility will approve or disapprove publications for

receipt by inmates on a case-by-case and/or issue-by-

issue basis.”! (The full text of DOP 852 is set forth in

the Petition for a Writ of Certiorari at Appendix H.)

Wholly absent from these regulations is any

requirement that the publisher of magazines which are

disapproved for receipt by the inmate-subscriber be

provided with notice of and an opportunity to com-

ment on the disapproval.

B. Factual Background

Montcalm is the publisher of Gallery magazine,

a monthly publication which is sold at newsstands and

by subscription in the Commonwealth of Virginia and

elsewhere. Each issue of Gallery includes, inter alia,

articles, fiction, commentary, photographic layouts of

nude women, and paid advertisements. Gallery has

received awards for literary and artistic merit,

including the prestigious O’Henry Award for short

fiction and the Print’s Regional Design Annual

1 Notwithstanding the unambiguous text of DOP

852, petitioners persistently refuse to acknowledge either that the

regulation calls for a two-part test to determine the propriety of

permitting an inmate to receive the magazine(s) to which he has

subscribed or that an issue-by-issue review of a monthly

magazine is required.

4

Certificate of Design Excellence and has been cited as

authority in the Congressional Record for a series of

articles concerning various ethnic groups in the

United States. Gallery has never been found to be

obscene under the Miller v. California standard in any

proceeding to which Montcalm has been a party.

Donald Hodges (Hodges) and Michael Flora

(Flora), inmates at Keen Mountain Correctional Center

(KMCC), one of many correctional facilities maintained

by the VDOC, were Gallery magazine subscribers at

the time Montcalm mailed their subscription copies of

the June 1992 through September 1992 issues of

Gallery to them at KMCC.

Hodges and Flora each commenced pro se civil

rights actions after the VDOC informed them that they

would not be permitted to receive their subscription

copies of the June 1992 and September 1992 issues

of Gallery because those issues allegedly violated DOP

852. They had, however, received Gallery through

May 1992 and the July and August 1992 issues. The

VDOC informed the inmates that these issues were

being withheld from them because certain written

passages in the magazines, not shown to either of

them, described explicit sexual conduct in a manner

inconsistent with the “obscenity criteria” of DOP 852.

The sole expressed basis for the disapproval of the

June 1992 and September 1992 issues of Gallery was

the written and not the photographic content.

Allegedly, up to June 1992, only the pictorial content

had been reviewed by the prison officials. The July

1992 issue was never forwarded to the Publication

Review Committee (PRC) of the VDOC and hence was

5

received by the inmate-subscriber. The August 1992

issue was reviewed again by the PRC at the request of

the prison, but was approved for receipt by the

inmate-subscriber. After the present suit was filed,

the PRC examined the July 1992 issue and reexam-

ined the August 1992 issue. The PRC now concluded

that these issues violated DOP 852 and were conse-

quently disapproved. Petitioners contend that these

issues of Gallery were subject to a “better” review but

they point to nothing in the record to support this

assertion. See Petition at 24.

In the defendants’ previously-denied summary

judgment motions in these actions, the District Court

(Kiser, Ch. J.) reviewed not only the withheld June

1992 and September 1992 Gallery issues, but also

the July 1992 and August 1992 issues of Gallery

which the inmates had been permitted to receive and

which they submitted to the Court as part of their

papers in opposition to the defendants’ mo.cons. The

Court found that the content of the withheld issues

was indistinguishable from the content of the permit-

ted issues. Memorandum Opinion of Kiser, Chief

Judge, at 5 n.2 [Opposition Brief:Appendix A].

On September 30, 1993, the District Court

granted the motion of Montcalm to intervene permis-

sively as a party plaintiff, and Montcalm's intervenor

complaint was filed with the court. (Montcalm learned

of these proceedings and of KMCC's decision to

exclude certain issues of Gallery magazine completely

fortuitously; inmate Flora wrote to Montcalm request-

ing a refund because KMCC had refused to permit

him to receive the magazines under his subscription.

6

On December 13, 1993 a hearing was held before

Magistrate-Judge Cynthia D. Kinser. Following the

submission of post-hearing briefs, Magistrate-Judge

Kinser issued a Report-Recommendation, entered May

5, 1994 (Petition:Appendix D at 3la-63a), determining

that DOP 852 was procedurally defective on its face

and as applied in that it failed to provide Montcalm, as

a publisher, with notice of and an opportunity to be

heard regarding the disapproval for distribution to the

subscribing inmate of one of its publications, to wit,

Gallery magazine. The Magistrate recommended that

injunctive relief be granted requiring defendants to

provide Montcalm with notice and an opportunity to be

heard. The Magistrate, however, otherwise upheld the

validity of the regulation, rejecting the facial and as

applied challenges advanced by the plaintiffs,

including plaintiff-intervenor Montcalm.

Thereafter, the District Court (Wilson, J.)

issued a Memorandum Opinion and a Final Order

dated and entered December 19, 1994. Hodges v.

Commonwealth of Virginia, 871 F.Supp. 873 (W.D.

Va. 1994) [Petition:Appendix B]. Briefly, the court

agreed with the Magistrate that the regulation was

substantively reasonable and valid. The court,

however, disagreed with the Magistrate on the issue of

notice, and determined that Montcalm was not, as a

matter of procedural due process, entitled to notice

and an opportunity to be heard separate and apart

from that afforded the inmate. Judgment was grar-ted

in defendants’ favor dismissing the plaintiffs’ claims in

their entirety. On appeal, the Fourth Circuit reversed,

squarely holding that “publishers are entitled to notice

and an opportunity to be heard when their publica-

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7

tions are disapproved for receipt by inmate subscrib-

ers.” Montcalm Publishing Corporation v. Beck, 80 F.3d

105, 106 (1996) [Petition:Appendix A]. The Fourth

Circuit remanded the case to the District Court for “a

determination of the appropriate process to be

provided to publishers of rejected publications.” Id. at

110. Petition for rehearing was denied.

Summary of the Argument

The Fourth Circuit correctly held that magazine

publishers, such as respondent, are entitled to notice

and an opportunity to be heard when their publica-

tions are disapproved by prison authorities for receipt

by inmate-subscribers. The ruling by the court below

involved application of well-settled law. Petitioner’s

contention, rejected without comment by the Fourth

Circuit, that no Article III case or controversy is

present regarding the question of notice and opportu-

nity to be heard is meritless.

Accordingly, no reason exists for this Court to

grant the petition for a writ of certiorari. The petition

should be denied.

8

Reasons To Deny The Writ

A. The Fourth Circuit Correctly Held That

Respondent Was Entitled To Notice And

An Opportunity To Be Heard When Its

Publications Are Disapproved For Receipt

By Its Inmate-Subscribers

This Court has unequivocally recognized a First

Amendment interest in those who wish to communi-

cate with prison inmates. As was true in Thomburgh v.

Abbott, 490 U.S. 401 (1989), so it is true in the

present case: there can be “no question that publish-

ers who wish to communicate with those who, through

subscription, willingly seek their point of view have a

legitimate First Amendment interest in access to

prisoners.” Id. at 408; see also Procunier v. Martinez,

416 U.S. 396 (1974). Although the Martinez Court

expressly reserved the question of how that interest

operates with regard to “mass mailings,” see id. at 408

n.11, as the Fourth Circuit observed, mass mailings

are not involved in this case. Rather, this case

concerns solely the receipt of a publication to which

an inmate has specifically subscribed and to whom a

publisher specifically mails that publication. The issue

resolved handily in respondent’s favor by the Fourth

Circuit was simply whether a publisher who has a

First Amendment right to communicate with an

inmate-subscriber is entitled to some form of notice

and an opportunity to be heard when its publication is

disapproved for receipt by the inmate-subscriber. In

deciding this issue in respondent’s favor, the Fourth

Circuit unequivocally rejected the wholly unsupported

argument that respondent was not entitled to even

9

minimal due process protections because its magazine

“graphically depict|s] sexual acts of intercourse in

every issue without exception”. Petition at 17.

Petitioners’ argument is also contradicted by the

requirement of the regulation (DOP 852) that petition-

ers are charged to uphold, to wit, that publications

intended for receipt by inmates be reviewed on a

case-by-case and/or issue-by issue basis. See DOP

852(VII)(A). Apparently, petitioners believe that they

can pick and choose which portions of DOP 852 they

will observe and those which they will not.

Petitioners’ sensational resort to the line of

cases concerned with children and the regulation and

prohibition of sexually-oriented materials is alarming

inasmuch as these cases are wholly inapposite, having

nothing to do with the issue at hand. Petitioners

devote an inordinate amount of space in their petition

(see Petition at 11-17) instructing the Court on various

definitions of “obscenity”, quoting a letter from the

“Feedback” section of Gallery (see id. at 13 n.2) and

relating the alleged detrimental impact that such

material has on prison security and rehabilitation

efforts (see id.). In so doing, petitioners have studious-

ly avoided confronting the very simple issue resolved

adversely to them by the Fourth Circuit, to wit,

whether magazine publishers, like respondent, who

have a First Amendment right as regards communicat-

ing with inmate-subscribers, are entitled to notice and

an opportunity to be heard when that First Amend-

ment right has been denied.

Petitioners’ contention that the Fourth Circuit

“declined to follow this Court's decision in Jones v.

10

North Carolina Prisoners’ Labor Union, Inc., 433 U.S.

119, 130-31 (1977), characterizing this Court's First

Amendment rule in Jones with respect to prison bulk

mailings as ‘barely implicated’ in this case”, Petition at

5, represents a gross misrepresentation of the Fourth

Circuit’s opinion. With respect to Jones, the Fourth

Circuit stated as follows:

Jones does not control the outcome of

this case for two reasons. First, this case

does not concern bulk mailings, but

rather the sending of publications to

those who have specifically subscribed to

them. Second, the Jones Court simply

held that the prisoners’ loss of the ability

to save money by using bulk mail did not

implicate the First Amendment.

80 F.3d at 109 [Petition:Appendix A at 10a]. The

Fourth Circuit correctly distinguished Jones from the

facts and circumstances of the present case.

Additionally, all the courts below uniformly

recognized that respondent did indeed have a First

Amendment interest in communicating with its inmate-

subscribers.2 Strangely, the district court, engaging in

é As Magistrate-Judge Kinser recognized implicitly

and District Judge Wilson stated expressly, “[p]ublishers, indeed,

have a First Amendment interest in communicating with prisoners

who seek their point of view through subscriptions.” Hodges v.

Commonwealth of Virginia, 871 F.Supp. at 878 (citing

Thomburgh v. Abbott, 490 U.S. 401, 408, 109 S.Ct. 1874, 1878-

1879 (1989)) [Petition:Appendix B at 23a]; see also Report and

Recommendation at 23, 25 [Petition:Appendix D at 54a, 55a]. The

Fourth Circuit also underscored respondent's First Amendment

11

a misconstruction and misapplication of Mathews v.

Eldridge, 424 U.S. 319 (1976), determined that

respondent's and other similarly-situated publishers’

First Amendment interests were adequately protected

by the notice given to the inmate-subscriber, and,

hence, separate notice to the publishers was not

needed. Hodges v. Commonwealth, 871 F.Supp. at

878-880 [Petition:Appendix B at 24a-27a]. The Fourth

Circuit rightly reversed the district court's decision,

reasoning that “[aJn inmate who cannot even see the

publication can hardly mount an effective challenge to

the decision to withhold that publication”. Montcalm

Publishing Corporation v. Beck, 80 F.3d at 109

[Petition:Appendix at 11a]. Protection of a publisher's

First Amendment right cannot depend upon the

publisher's fortuitous receipt of the letter that was

sent to the inmate, see id., as was the case here.

Respondent is entitled, as a matter of procedur-

al due process, to some form of notice and opportuni-

interest stating, “[hjaving recognized that Montcalm indeed has a

constitutional interest in communicating with its inmate-

subscribers, we cannot conclude that it is entitled to no process

at all when VDOC prevents the subscribers from receiving

Montcalm's publications.” Montcalm Publishing Corporation v.

Beck, 80 F.3d at 109 [Petition:Appendix A at 1 la].

That being the case, whether, as petitioners have argued

throughout these proceedings, Cofone v. Manson, 409 F.Supp.

1033 (D. Conn. 1976), is questionable precedent is wholly

beside the point.

It must be pointed out that petitioners did not argue in its

objections to the Magistrate-Judge’s Report and Recommendation

that respondent did not have such a First Amendment right or

that this right was not being deprived. See Defendants’

Objections to the Magistrate Judge’s Report and Recommendation

[Opposition Brief:Appendix B].

12

ty to be heard when the State, as a consequence of

the prison facility’s issue-by-issue review of its

monthly magazine Gallery, denies a subscribing

inmate receipt of that publication. If a protected

interest, be it a "property" interest or a "liberty"

interest, has been or is about to be deprived, then

notice and an opportunity to be heard must have been

or must be afforded in some fashion. That much is

settled law. See, e.g., Leis v. Flynt, 439 U.S. 438, 99

S.Ct. 698 (1979); Mathews v. Eldridge, 424 U.S. 319,

332, 96 S.Ct. 893 (1976); Blount v. Rizzi, 400 U.S.

410, 91 S.Ct. 423 (1971); Richardson v. Town of

Eastover, 922 F.2d 1152, 1160 (4th Cir. 1991);

Propert v. District of Columbia, 948 F.2d 1327, 1332

(D.C. Cir. 1991) ("Nevertheless, however weighty the

governmental interest may be in a given case, the

amount of process required can never be reduced to

zero — that is, the government is never relieved of its

duty to provide some notice and some opportunity to

be heard prior to final deprivation of a property

interest.") (emphasis in original); Berg v. Commander,

Fifth Coast Guard District, 810 F.Supp. 703, 709

(E.D.Va. 1992) (noting that it is settled law that

procedural due process must accompany a deprivation

of a constitutionally-protected liberty or property

interest), affd, 27 F.3d 562 (4th Cir. 1994); Bosley v.

Baltimore County, Maryland, 804 F.Supp. 744, 749

(D. Md. 1992), affd, 986 F.2d 1412 (4th Cir. 1993).

Petitioner errs in arguing to this Court, and the

district court below erred in concluding, that, under

Mathews v. Eldridge, supra, due process is a flexible

enough concept to allow for no process at all. This

construction and application of Mathews is wholly

without any legal basis. Entirely correctly, the Fourth

A

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13

Circuit did not cite to (except insofar as it set forth the

reasoning of the District Court), much less discuss,

Mathews, no doubt because the issues raised in

Mathews are demonstrably different from those raised

in this case.3

Petitioners contend that affording respondent

procedural due process protections “creates a

heretofore unrecognized basis for federal judicial

supervision of state prisons” and that it “wrongly

increases the expense and burdens of prison adminis-

tration.” Petition at 18. Petitioners fail to explain how

affording respondent minimal Due Process protections

constitutes “federal judicial supervision of state

prison” and its claim that prison administration

expense and burdens would increase falls far short of

the “unduly burdensome” requirement of Martinez. See

Martinez, 416 U.S. at 419.4 As the Fourth Circuit

observed, “[a]t present, VDOC procedures require

written notice to inmates when a publication is

3 The issue in Mathews was “whether the Due

Process Clause of the Fifth Amendment requires that prior to the

termination of Social Security disability benefit payments the

recipient be afforded an opportunity for an evidentiary hearing.”

Mathews, 424 U.S. at 323. Not at issue in Mathews was whether

the recipient need be notified of benefits termination or whether

the recipient need be afforded any opportunity to be heard

regarding benefits termination.

4 Petitioners’ citation to Lawson v. Dugger, 840

F.2d 781 (11th Cir. 1987), vacated, 490 U.S. 1078 (1989), on

remand, 897 F.2d 536 (11th Cir. 1990), on remand, 844

F.Supp. 1538 (S.D. Fla. 1994), and notation that Florida adopted

review procedures substantially similar to the regulations at issue

in Abbott, undercuts their argument regarding the expense and

burdens of affording publishers notice of and an opportunity to

be heard on the exclusion of one of its publications.

| :

14

disapproved.” 80 F.3d at 109 [Petition:Appendix A at

lla]. That being the case, “providing a copy of this

notice to publishers of disapproved publications and

allowing the publishers to respond in writing would

pose a minimal burden on corrections officials.” Id.

DOP 852 does not provide for any notice to or

opportunity to be heard by publishers, like Montcalm,

whose magazines are denied to their inmate-subscrib-

ers. DOP 852 is, therefore, unconstitutional on its

face for failing to provide to such publishers even the

most minimal protections of the Due Process clause.

That inmates and those on the outside wishing to

communicate with them must suffer a curtailment of

constitutional rights does not afford a basis for prison

administrators to completely deny a non-inmate

correspondent even the most minimal protections of

the Due Process clause. Given the Fourth Circuit's

unremarkable application of settled law in respon-

dent’s favor, no reason exists for this Court to grant

the petition for a writ of certiorari.

B. The Fourth Circuit Did Not Err In Rejecting

Without Comment Petitioner's Argument

That Respondent Lacks Standing To Seek

Declaratory Relief And That No Article III

Case Or Controversy Exists

Petitioners argue that “[o]nce a final judicial

determination had been made that the VDOC effec-

tively, and correctly, banned Gallery from Virginia's

prisons — an issue that became final when the inmates

and Montcalm failed to appeal the district court’s

15

judgment on that issue — no case or controversy

existed any longer.” Petition at 25. Petitioners’

argument that no live case or controversy is present

and that respondent lacks standing to pusue declara-

tory and injunctive relief is meritless. The court below

rightly rejected this argument without comment, both

in reversing the decision of the district court and in

denying petitioner's petition for rehearing.

In so arguing in their petition, petitioners

misrepresent the determination of the district court

regarding the substantive issue as to the propriety of

the prison’s disapproval of specific issues of Gallery.

The district court, in adopting the recommendations of

the magistrate, ruled that petitioners had not uncon-

stitutionally disapproved for distribution to the

subscribing inmates specific issues of Gallery. Neither

the magistrate nor the district court was called upon

to pass judgment on any absolute ban on any and all

issues of Gallery. Moreover, the district court did not

dispute or disagree with the magistrate’s determina-

tion that monthly reviews of Gallery was required by

DOP 852; rather, the district court disagreed that

separate notice of any disapproval as a result of that

monthly review needed to be provided to respondent.

An Article III case or controversy exists

between the State and respondent permitting and

warranting declaratory and injunctive relief in

respondent's favor because each time respondent's

publication Gallery is not permitted to be delivered to

the subscribing inmate, respondent's First Amend-

ment right to communicate to that subscriber is

adversely affected. Each time respondent fails to

16

receive notice of that denial and thus is not afforded

an opportunity to comment on the denial, respondent

is deprived of the process due it under the Fourteenth

Amendment, as has been set forth above at length.

The opportunity to comment upon the denial is crucial

for it is here that respondent, unlike the inmate-

subscriber who will not know what the "offending"

passages consist of or in what context they were

presented, can attempt to persuade the prison

officials charged with applying DOP 852 that a

"reasonable person viewing the depiction or represen-

tation [in the particular month's issue involved] would

find that the material taken as a whole [does not]

appeal[] to a prurient interest in sex." DOP 852

(VIII)(D)(2).5 The injury respondent suffers could not

be more real and immediate, see City of Los Angeles v.

Lyons, 461 U.S. 95, 111 (1983), and well-established

law holds that violations of constitutional rights are

generally recognized to be irreparable and sufficient to

5 It must be borne in mind that the regulation sets

forth a two-part test, the first part of which focuses on whether

certain conduct is represented or described in the publication,

and the second part of which requires that the “offending” matter

be placed in the context of the publication as a whole so that a

determination can be made whether the publication as a whole

would appeal to a prurient interest in sex from the point of view of

a reasonable person.

Based upon the text of the regulation, then, Gallery

cannot be rejected for dissemination to the inmate-subscriber

solely on the ground that it contains written passages that

describe certain conduct. Satisfying the first part of the test is

insufficient, and satisfying the first part of the test does not mean

that the second part is automatically satisfied without any further

inquiry of deliberation on the part of the prison officials charged

with applying the regulation. Hence, input from respondent

should not be viewed as a futile act, and notice to respondent

cannot be viewed as pointless.

Dee WIM Waker oboe tla TS aS oa

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4

3

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17

justify injunctive relief. Ross v. Meese, 818 F.2d 1132,

1134-1135 (4th Cir. 1987) (noting that the denial of a

constitutional right constitutes irreparable harm for

the purposes of equitable jurisdiction); Scelsa v. City

University of New York, 806 F.Supp. 1126 (S.D.N.V.

1992); Multimedia Publishing Company of South

Carolina, Inc. v. Greenville-Spartanburgh Airport Dist.,

774 F.Supp. 977, 986 (D.S.C. 1991) (denial of First

Amendment right to distribute newspapers in a public

forum constitutes irreparable injury thus entitling

plaintiff to injunctive relief), affd in part and vacated

and remanded in part, 991 F.2d 154 (4th Cir. 1992):

United States for the Use of Pensacola Construction Co.

v. St. Paul Fire and Marine Insurance Co., 705 F.Supp.

306, 310 (W.D. La. 1989) ("The loss of procedural

rights . . . is the kind of damage protected by the

Declaratory Judgment Act."); United States v. State of

Michigan, 508 F.Supp. 480, 492 (W.D. Mich. 1980)

("Where the denial of fundamental interests such as

constitutional rights are involved, damage is presumed

to be irreparable and an injunction should issue as a

matter of course."), affd, 712 F.2d 242 (6th Cir.

1983).

The presence of adverse legal interests between

parties, such as exists between respondent Montcalm

and petitioners, supplies the requisite case or

controversy within the meaning of Article III and the

Federal Declaratory Judgment Act. White v. National

Union Fire Insurance Company of Pittsburgh, Pa., 913

F.2d 165, 167 (4th Cir. 1990).

Petitioners have adopted the position that they

will continue to disapprove Gallery for distribution to

18

inmate-subscribers based upon past disapprovals,

notwithstanding DOP 852 which requires issue by

issue, month by month review and that they will not

give notice of such disapprovals or afford Montcalm an

opportunity to comment upon the disapprovals.

Accordingly, there exists a sufficient likelihood that

Montcalm will be wronged again in the future. See

City of Los Angeles v. Lyons, 461 U.S. at 105, 111.

As they essentially argue now, albeit within the

framework of Article III jurisprudence (see Petition at

26-27), so they argued before the magistrate, to wit,

that Montcalm knows “that Gallery will not be

approved for future dissemination until its material is

‘toned down”; hence, declaratory and injunctive relief

is unnecessary and would serve no real purpose.

Report and Recommendation at 26 [Petition:Appendix

at 56a]. The magistrate deftly rejected these argu-

ments stating,

In response to these contentions, the

court need only turn to the review

process itself, which belies the Common-

wealth’s position. The PRC conducts

monthly evaluations of publications to

which the individual institutions have

objected. The PRC then determines

whether that monthly issue violates DOP

852. It makes no judgment about future

issues. Indeed, DOP 852 VII.A. states

that “each facility will approve or

disapprove publications for receipt by

inmates on a case-by-case and/or issue-

by-issue basis .. .”].

19

Report and Recommenation at 26 (emphasis supplied)

[Petition:Appendix D at 56a-57a]. As Magistrate-Judge

Kinser trenchantly observed, “[t]he review process

itself which requires each issue of a publication to be

evaluated makes declaratory and injunctive relief

: appropriate to Montcalm under these circumstances.”

Report and Recommendation at 31 [Petition:Appendix

D at 62a]. Tellingly, petitioners did not file any

objection to this portion of the Magistrate-Judge’s

Report and Recommendation. See Defendants’

Objections [Opposition Brief:Appendix B].

No issue under Article III is raised warranting

further review by this Court.

Conclusion

For the reasons set forth above, the Court

should deny the petition for a writ of certiorari.

Respectfully submitted,

Maryanne B. Orenstein

Counsel of Record

ORENSTEIN & ORENSTEIN, P.C

Keith S. Orenstein

Jeffrey Niederhoffer

635 Madison Avenue

New York, New York 10022

(212) 754-6300

Attorneys for Respondent

We dita Po

APPENDICES

Al

APPENDIX A—MEMORANDUM OPINION AND

ORDER OF CHIEF JUDGE JACKSON L. KISER

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

DONALD A. HODGES,

Plaintiff,

v.

COMMONWEALTH OF VIRGINIA. et al.,

Defendants.

Civil Action No. 92-0696-R

Memorandum Opinion

By: Jackson L. Kiser, Chief Judge

United States District Court

Plaintiff Donald Hodges, an inmate at Keen Mountain

Correctional Center [hereinafter “KMCC’”’], has filed this pro

se civil action pursuant to 42 U.S.C. §1983, with jurisdiction

vested pursuant to 28 U.S.C. §1343. Plaintiff claims that the

defendants have violated his constitutional rights by refusing

to permit him to receive two issues of Gallery Magazine. He

A2

names as defendants several officials and employees with the

Virginia Department of Corrections [hereinafter “VDOC’]

and seeks monetary damages. The defendants, through

counsel, filed a motion to dismiss and plaintiff has responded.

This action therefore is ripe for consideration.

Upon motion for summary judgment, the court must view

the facts and the inferences to be drawn from those facts, in

the light most favorable to the party opposing the motion. Ross

v. Communications Satellite Corp., 759 F.2d 355 (4th Cir.

1985). Summary judgment is proper where there is no genuine

issue as to any material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c). However.

[t]he mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there

be ro genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242. (1986).

When a motion for summary judgment is made and properly

supported by affidavits, depositions, or answers to

interrogatories, the adverse party may not rest on the mere

allegations or denials of the adverse party’s pleadings. Instead,

the adverse party must respond by affidavits or otherwise and

present specific facts showing that there is a genuine issue of

disputed fact for trial. Fed. R. Civ. P. 56(e). If the adverse party

fails to show a genuine issue of fact, summary judgment, if

appropriate, may be entered against the adverse party.

Plaintiff alleges in his complaint and supporting documents

that he has a subscription to Gallery Magazine and that while

he has been permitted to receive some of the issues, he was

not permitted to receive the June or September 1992 issues

after the defendants determined that certain articles in those

issues violated Division Operating Procedure [“DOP”’] 852.

2 ee =

|

|

A3

Plaintiff not only challenges the constitutionality of DOP 852,

but also asserts that the policy is not applied consistently

within the VDOC and KMCC.

It is well-settled that prison officials can regulate a

prisoner’s access to incoming publications as long as the

regulations are reasonably related to legitimate penological

interests. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989). In

determining whether a regulation satisfies the reasonableness

standard, a court must consider the four factors announced in

Turner v. Safely, 482 U.S. 78, 89-91 (1987). A court assessing

a regulation’s reasonableness under Turner must consider: 1)

whether a legitimate governmental objective is involved and

whether there is a rational connection between that objective

and the regulation; 2) whether the inmate has other means of

exercising the constitutional right in question; 3) whether

accommodation of the right would have a ripple effect within

the institution; and 4) whether there is an absence of ready

alternatives for the institution to accommodate the inmate’s

rights. Id. 7

The defendants argue in their motion for summary

judgment that DOP 852 satisfies the Turner reasonableness

standard. DOP 852 permits inmates to receive subscription

magazines directly from the publishers as long as the

publications “are not obscene, and do not pose a threat to the

security, discipline, and good order of the institution.” Under

the regulation, publications are reviewed on an issue-by-issue

basis at the local level to determine whether they come within

the terms of the guideline. Once a determination is made at the

local level that a publication violates DOP 852, the publication

is sent to the VDOC Publication Review Committee. If the

Review Committee concurs in the findings at the local level,

the publication is returned to the institution, which notifies the

A4

inmate of its disapproval and presents him with the option of

having the issue destroyed or sent home.

In the instant case, plaintiff's two issues of Gallery were

disapproved for receipt into KMCC because articles in those

issues violated the obscenity provisions of DOP 852.' The

Review Committee concurred in the decision, and plaintiff

was notified of the disapproval and given the opportunity to

direct the disposal of the issues.

While the defendants have addressed the reasonableness of

DOP 852 under the Turner standard, their motion is silent as

to plaintiff's claim that the regulation has been applied

arbitrarily and inconsistently within KMCC-. In the supporting

documents filed with his complaint plaintiff claims that the

KMCC library contains books with explicit sexual

descriptions which also violate DOP 852, Plaintiff also alleges

that some inmates at KMCC were permitted to receive the June

1992 issue of Gallery which he and other inmates were denied.

In addition, plaintiff has submitted a copy of the August 1992

issue of Gallery presumably to demonstrate that the articles in

this issue received approval under DOP 852 despite the fact

! pop 852 provides that a publication may be disapproved as obscene if

it:

(1) depicts or describes sexual conduct in such a way to include, either:

a) representations or descriptions or actual sexual intercourse, normal or

perverted, anal or oral; or,

b) representations or descriptions of excretion in the context of sexual

activity or lewd exhibitions of uncovered genitals in the context of

masturbation or other sexual activity ; and,

(2) a reasonable person viewing the depiction or representation would

find that the material taken as a whole appeals to a prurient interest in

Sex.

AS

that they contain the same types of depictions which caused

the June and August [sic] issues to be disapproved.”

Because the defendants have not addressed plaintiff’ s claim

concerning the allegedly inconsistent application of DOP 852,

I must deny the defendants’ motion for summary judgment.

Inasmuch as an evidentiary hearing will be held as to this

claim, I deem it prudent to save the larger question of the

constitutionality of DOP 852 for further development at the

evidentiary hearing.

Inasmuch as this matter originally arose in the Abingdon

Division of this court, the case will be transferred to the

Honorable Samuel G. Wilson to conduct any further

proceedings in this matter.

The Clerk of the Court is directed to send certified copies

of this Memorandum Opinion and accompanying Order to

plaintiff and to counsel of record for the defendants.

ENTER: This 16th day of June, 1993.

Jackson L. Kiser/signature

CHIEF U.S. DISTRICT JUDGE

2 Thave compared the articles in this issue with the challenged articles in

the June and September issues and can find no difference whatsoever

between the two sets of articles in terms of the obscenity criteria laid out

in DOP 852.

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

DONALD A. HODGES,

Plaintiff

V.

COMMONWEALTH OF VIRGINIA. et al.,

Defendants.

Civil Action No. 92-0696-R

ORDER

By: Jackson L. Kiser, Chief Judge

United States District Court

In accordance with the written Memorandum Opinion

entered this day, it is hereby ADJUDGED and ORDERED

that the defendants’ Motion for Summary Judgment is

DENIED.

The Clerk of the Court is directed to send certified copies

of this Order and accompanying Memorandum Opinion to

plaintiff and to counsel of record for the defendants.

ENTER: This 16th day of June, 1993.

aed L. Kiser/si

CHIEF U.S. DISTRICT JUDGE

A7

APPENDIX B—DEFENDANTS’ OBJECTIONS TO

THE MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

DONALD A. HODGES, et al.,

Plaintiffs,

V.

COMMONWEALTH, et al.,

Defendants;

and

MICHAEL G. FLORA, et al ,

Plaintiffs,

v.

COMMONWEALTH, et al.,

Defendants.

DEFENDANTS’ OBJECTIONS TO THE

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION

CIVIL ACTION NO. 92-0696

CIVIL ACTION NO. 92-3907

A8

Defendant officials of the Virginia Department of

Corrections (VDOC), by counsel, respectfully object to that

portion of the Recommendation of the Magistrate Judge which

requires the VDOC to provide notice to Montcalm Publishing

Corporation (Montcalm) whenever an issue of Gallery

magazine is denied for receipt into a VDOC prison.

Specifically, defendants object to Recommended Finding of

Fact No. 13 and Recommended Conclusions of Law Nos.

25-28. Defendants submit that they are not required to give

notice to a purveyor of a pornographic magazine when its

magazine has been disapproved for receipt into a state prison.

Alternatively, defendants request the Court to exercise its

discretion and decline to grant an injunction or declaratory

relief to Montcalm, inasmuch as any judgment in Montcalm’s

favor would have no practical effect.

I.

PRISON AUTHORITIES ARE NOT

REQUIRED TO GIVE NOTICE TO

SENDERS OF MASS PORNOGRAPHIC

MAILINGS THAT THEIR MAILINGS

HAVE BEEN DENIED FOR RECEIPT

INTO STATE PRISONS

In Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme

Court determined, among other things, that the author of a

personal letter written to an inmate is entitled to notice if his

letter is rejected for receipt into the prison. 416 U S. at

417-419. The Martinez decision, however, clearly is limited

to correspondence in the nature of personal letters. The Court

explicitly reserved judgment as to whether mass mailings were

entitled to the same institutional protections as individual

correspondence 416 U.S. at 408 n. 11. The Court has not

revisited this issue since that time.

A9

In Thornburgh v. Abbott, 490 U.S. 401 (1989), the Court

observed that publishers wishing to communicate with

inmates who “willingly seek their point of view have a

legitimate First Amendment interest in access to prisoners.”

403 U.S. at 407. The Court did not, however, address the

notice issue since the Bureau of prisons’ regulations

challenged in Abbott provided for notice to publishers in the

event that a publication was disapproved for receipt. Apart

from the “mass mailings” issue that the Martinez Court

reserved, the Supreme Court has never squarely addressed the

subject of notice when the mass mailing consists of

pornographic material.

Neither the Fourth Circuit or [sic] any district circuit within

this circuit has written about the subject of publisher notice.

Notwithstanding the discussion of several cases on p. 24 of

the Magistrate Judge’s Report and Recommendation, the only

decision that explicitly extends a notice requirement to

publishers is the decision in Cofone v. Manson, 409 F.Supp.

1033 (D.Conn 1976). Even that single case appears to have

been wrongly decided, inasmuch as the only plaintiff in the

proceeding was an inmate whose standing to raise the issue of

publisher notice is questionable. Thus this Court confronts a

novel issue of constitutional law when it determines whether

publishers of mass mailings, or publishers of pornographic

materials, are entitled to notice when prison authorities reject

a magazine for receipt into a prison facility.’

Although the issue of notice to publishers is unresolved, the question

presented is one purely of law and can be resolved without resort to a

review of the trial proceedings.

Al0

The clear rationale behind both the Martinez and Abbott

decisions is the unassailable notion that the communication of

ideas ordinarily should flow freely, and that when there is

adequate justification to restrict that flow of information, such

as in a prison context, then both the sender and intended

recipient should have notice and an opportunity to contest the

decision. Yet, the Court has clearly recognized that mass

mailings may present a particular problem in the prison

context; accordingly, different considerations may apply than

would be applicable in the case of an individual sender. See

Martinez n. 11. Such considerations become even more

problematic when the mass mailing contains pornographic, or

even obscene, material.

The letters contained in the “Feedback” section of Gallery

are devoid of any ideas that have an entitlement to

constitutional protection. The letters themselves are clearly

obscene and, viewed apart from the rest of the magazine,

would be entitled to no First Amendment protection in free

society. See Paris Adult Theatre I v. Slayton, 413 U.S. 49

(1973). Clearly prison authorities can isolate their attention

upon specific portions of a magazine in deciding whether the

publication may be allowed into a prison. Thornburgh v

Abbott, 490 U.S. at 418-19 (discussing Bureau of Prisons

“all-or-nothing” rule). Montcalm is charged with recognizing

that the contents of its “Feedback” section in each Gallery

issue contains legally obscene materials. Montcalm is further

charged with knowledge of the fact that prison authorities may

focus their attention on these obscene letters in determining

whether the magazine is suitable for admission into a prison.

Since the letters are not entitled to constitutional protection,

in a prison setting, there accordingly should be no requirement

that the sender of these materials receive notice when the

magazine containing the letters is disapproved for receipt.

ii a

All

Il.

THIS COURT SHOULD EXERCISE ITS

DISCRETION AND REFUSE TO ISSUE

EITHER AN INJUNCTION OR

DECLARATORY RELIEF

Assuming arguendo that Montcalm has some entitlement

to notice when a decision is reached to disapprove Gallery for

receipt into Virginia’s prisons, this Court should nonetheless

exercise the discretion available to it to decline to issue either

injunctive or declaratory relief. The legal authorities that

support the conclusion that this Court may exercise discretion

in this regard are discussed at pp. 19 and 20 of the Defendants’

Post-Trial Memorandum Of Law and will not be repeated

herein. The Magistrate Judge recommends that the Court

reject the defendants’ argument in this regard because the

VDOC regulation requires a review of every issue of a

magazine, notwithstanding the fact that the ultimate decision

is, for all practical purposes, preordained.

The reality is that Gallery had been consistently

disapproved for receipt for well over a year at the time that

this case was heard. The content of the “Feedback” section has

always been replete with obscene letters, and Montcalm has

not given any indication that it might alter the magazine’s

format in order to make it acceptable for receipt into Virginia's

prisons. Thus there is no practical effect of a notice

requirement for Montcalm. A requirement that the VDOC give

Montcalm notice that each and every issue of Gallery

continues to be unacceptable is meaningless. Since the

question of notice to other publishers is not presently before

the Court, these defendants respectfully ask the Court to

Al2

exercise its discretion and decline to issue either an injunction

or a declaratory judgment in Montcalm’s favor with respect to

the notice issue.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA, et al ,

By Mark R. Davis/si

Counsel

Mark R. Davis

Mary E. Shea

Assistant Attorneys General

Office of the Attorney General

Criminal Law Division

101 North 8th Street

Richmond, Virginia 23219

(804) 786-8196

VSB #18830 (Davis)

VSB #32147 (Shea)

CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of May, 1994, a true

copy of the foregoing Defendants’ Objections To The

Magistrate Judge’s Report And Recommendation was mailed,

postage prepaid, to Keith S. Orenstein, Counsel for Montcalm

Publishing Corporation, 635 Madison Avenue, New York,

New York, 10022; to Daniel R. Bieger, Local Counsel for

Montcalm Publishing Corporation, 212 West Valley Street,

P.O. Box 1296, Abingdon, Virginia, 24210; to Donald A.

Al3

Hodges, #144652, Keen Mountain Correctional Center, P O

Box 710, Keen Mountain, Virginia, 26424; and to Michael G.

Flora, #190234, Keen Mountain Correctional Center, 2 0. Box

710, Keen Mountain Virginia, 25424.

it Devinie

Mark R. Davis

Assistant Attorney General