Petition for Writ of Certiorari — Chronicle Publishing Co. v. Rison

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

THE CHRONICLE PUBLISHING COMPANY

and DANNIE MARTIN,

Petitioners,

R.H. RISON, Warden for the United States

Penitentiary at Lompoc, California, ef a/.,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

WILLIAM BENNETT TURNER JAMES M. WAGSTAFFE

(Counsel of Record) MARTIN KASSMAN

ROGERS, JOSEPH, O'DONNELL & QUINN COOPER, WHITE & COOPER

311 California Street, 10th Floor 201 California Street, 17th Floor

San Francisco, CA 94104 San Francisco, CA 94111

Telephone: (415) 956-2828 Telephone: (415) 433-1900

Attorneys for Petitioners

QUESTIONS PRESENTED FOR REVIEW

1. Whether an action brought by a daily newspaper and

a federal prisoner challenging the validity under the First

Amendment of Federal Bureau of Prisons regulations of nationwide

application is rendered non-justiciable by Article III's limitation of

the federal judicial power to “Cases” and “Controversies” when,

after trial and full briefing and argument in the Court of Appeals,

the Bureau releases the prisoner on parole.

2. Whether a federal prisoner's release on parole

requires that an appeal in his federal lawsuit challenging prison

regulations be dismissed as moot.

3. Whether a federal action raising constitutional

challenges to regulations may be dismissed in its entirety as moot

notwithstanding the outstanding damage claims of the plaintiffs or

the courts’ ability to give other effectual relief to at least one party.

LIST OF PARTIES PURSUANT TO RULE 14.1(b)

Pursuant to this Court's Rule 14.1(b), petitioners state

that the parties to the proceeding in the United States Court of

Appeals for the Ninth Circuit were as follows.

Plaintiffs and appellants: The Chronicle Publishing

Company' and Dannie Martin.

Defendants and appellees: R. H. Rison, Warden of the

United States Penitentiary at Lompoc, California; Tom Curd,

Assistant Warden; Paul Hofer, Executive Assistant to the Warden:

Jerry Williford, Director, Western Region, Federal Bureau of

Prisons; Michael Quinlan, Director, Federal Bureau of Prisons; and

the Federal Bureau of Prisons.

Pursuant to this Court's Rule 29.1, petitioners state that San Francisco

Newspaper Printing Company, Inc. and Skouras Pictures, Inc. are subsidiaries

of petitioner The Chronicle Publishing Company, which has no parent

company.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............ i

LIST OF PARTIES PURSUANT TO RULE 14.1(b) ....... il

ys pr rr iil

py RP hy sy 9 |. Vv

ES ea l

er l

CONSTITUTIONAL PROVISIONS AND REGULATIONS

ES l

UMUE MIEN SPE RUM GA 2. eee 2

A. The Public Importance of the Underlying

ie ig 5 Ls 5p wv. 5 4-6 9 eae ae 2

B. The Substantial Expenditure of Judicial and Other

Resources in the Tnal Court ................ 4

C. The Significant Efforts Expended on Appeal and

the Frustration of Those Efforts by the Ninth

EE 7

D. Statement of Basis for Federal Jurisdiction

ES) 10

REASONS WHY CERTIORARI SHOULD BE

Ey eye ee ee 10

I. Certiorari Should be Granted to Consider the

Circumstances, If Any, in Which Article III] Mandates

That an Appeal Under Submission Must Be Dismissed

sadist CEO OTC TEE LN ee ee 10

A. The Unclear State of Mootness Jurisprudence .... 10

B. The Compelling Reasons for This Case to Be

Decided on the Merits ................... 15

II. Certiorari Should Be Granted Because the Decision

Below Conflicts With the Decisions of Other

SE coach i eer ene 18

III. Certiorari Should Be Granted Because the Decision

Below Conflicts With Binding Precedent of This

Court Holding That the Presence of Outstanding

Unresolved Damage Claims or the Ability to Grant

Some Effective Relief Precludes a Finding of

Ba EE na aoe he 20

dn ci REE OE at Sk ret a, te, 23

Ce ee ar ee are ee ee Appendix-|

TABLE OF AUTHORITIES

Cases

Boag v. MacDougall,

So es rrr

Board of Pardons v. Allen,

ey: a re ree

Carey v. Piphus,

GaP Ge Bet CUFFED oe cbse es

Carnegie-Mellon Univ. v. Cohill,

Chapman v. Pickett,

500 F.26 22 (7m Cor. 1978) ..........

Chiles v. Thornburgh,

865 F.2d 1197 (11th Cir. 1989)........

Church of Scientology v. United States,

OF UA. SOO) CEG es) ow kc es ck

City of Mesquite v. Aladdin's Castle, Inc.,

og ee ns

City of Richmond vy. J.A. Croson Co.,

eh nD

Page(s)

Cases (continued)

Diamontiney v. Borg,

918 F.2d 793 (9th Cir. , Seghaes

Flagg Bros., Inc. v. Brooks.

Soe wa. S00 (1978)...

Globe Newspaper Co. vy. Superior Court,

457 U.S. 596 (1982) ........__.

Honig v. Doe,

484 US. 305 (1988) ......

Liner v. Jafco, Inc.,

375 U.S. 301 (1964) .......

McKinney v. Maynard

952 F.2d 350 (10th Cir. 1991)

Memphis Light, Gas & Water Div. v. ( raft,

436 US.1(1978) .......00

Mills v. Green.

159 U.S. 651 (1895) ........_..

Morales v. Schmidt.

489 F.2d 1335 (7th Cir. rs)...

Nebraska Press Ass'n vy. Stuart,

427 U.S. 539 (rere) ...........

Cases (continued)

Newport Lid. v. Sears, Roebuck & Co.,

941 F.2d 302 (Sth Cir. 1991),

cert. denied, 117 L. Ed. 2d 420 (1992) ........... 15

Powell v. McCormack,

395 U.S. 486 (1969) ..................... .. 19

Press-Enterprise Co. v. Superior Court,

WUE O WRU oes rc eke eee ee 11, 12

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980) ...................... 12, 13

Roe v. Wade,

ae eee), ys) 12

Rosado v. Wyman,

PPT OO ENOFOE oc ck ce ce dev ieacecs 14

Schneider v. TRW, Inc.,

938 F.2d 986 (9th Cir. 1991) .................. 15

Simon & Schuster v. Members of the N.Y. State Crime Victims Bd.

116 L. Ed. 2d 476 (1991) .......00000 17, 21, 22

United States Parole Comm'n vy. Geraghty,

TOF We SUPE ek a enka we ccves 11-13

United States v. Sherbondy,

865 F.2d 996 (9th Cir. 1988) ................. 3

vil

Cases (continued)

United States v. W. T. Grant Co.,

345 US. 629 (io)

Workman vy. Mitchell,

502 F.2d 1201 (9th Cir. 1974)

Yniguez v. Arizona,

975 F.2d 646 (9th Cir. 1992)

Constitutional Provisions

U.S. Const. amend. I1........__.

U.S. Const. amend. IV . '

U.S. Const. amend. V .___.

U.S. Const. amend. VI.

U.S. Const. art. III... .-

Statutes

5 USC. § 702

ISUS.C.§ 1001 .......

28 U.S.C. § 12541) ...._.

Vill

Statutes (continued)

rete Some a) ne Srey pi 10

| oe ae gra Se se ee a

RA I nn oa os ee ene ea oe ele ea ae 10

Eo os se oe Ok os Oe eek eee 10

re Ea ore pe acne ae ce wie ae Oe ed ee 10

Regulations

Pe |) ee us ae

gee ee | re 1, 4, 5

eas PE os oes tke ee Renee ee 1,4

Oe a PE oS eos a ee ee eee a a

Other Authorities

Evan T. Lee, Deconstitutionalizing Justiciability: The Example of

Mootness,

105 Harv. L. Rev. 603 (1992) ......... 11, 13, 14, 18

DECISIONS BELOW

The decision of the United States Court of Appeals for

the Ninth Circuit is reported as Chronicle Publishing Co. v. Rison,

962 F.2d 959 (9th Cir. 1992). The decision of the United States

District Court for the Northern District of California is reported as

Martin v. Rison, 741 F. Supp. 1406 (N.D. Cal. 1990).

JURISDICTION

The decision of the Court of Appeals was filed on

April 28, 1992. Petitions for rehearing and a suggestion of

rehearing en banc were timely filed. The Court of Appeals denied

rehearing on September 21, 1992, Judge D. W. Nelson having

voted for rehearing. This timely petition invokes the Court's

certiorari jurisdiction under Section 1254(1) of Title 28 of the

United States Code.

CONSTITUTIONAL PROVISIONS AND

REGULATIONS INVOLVED

This petition raises a question of interpretation of Article

III, Section 2 of the United States Constitution. On the merits, this

action involved the validity of regulations of the Federal Bureau of

Prisons—Section 540.20(b) and, with respect to certain

applications, Sections 540.14(d)(4), 540.45 and 541.13 (Prohibited

Act 408) of Title 28 of the Code of Federal Regulations—under the

free speech and press clauses of the First Amendment to the United

States Constitution and the due process clause of the Fifth

Amendment to the United States Constitution. The relevant

constitutional provisions and regulations are reproduced in the

Appendix at 43-45.

STATEMENT OF THE CASE

A. The Public Importance of the Underlying Controversy

In 1986, petitioner Dannie M. Martin, who was

incarcerated in the United States Penitentiary at Lompoc,

California, after a bank robbery conviction, submitted to the San

Francisco Chronicle, a daily newspaper published by petitioner The

Chronicle Publishing Company (“Chronicle”), a first-person

commentary about the impact of acquired immune deficiency

syndrome (AIDS) in prison. Believing that the article provided a

unique perspective on AIDS, a topic of great public concern,

Chronicle published the article on August 3, 1986, under the title

AIDS: The View From a Prison Cell. Chronicle included a byline

identifying Martin and, at the bottom, an identification line stating

that Martin was a convict incarcerated at Lompoc.

Over the next twenty-two months, Martin submitted

more first-person commentaries to Chronicle, which published

seventeen of them in its “Sunday Punch” features section with

Martin's byline and ideniification. Chronicle made its customary

payment for published freelance writing, intending it to serve as a

token of the writing's value and to encourage future submissions.

Martin's writing quickly earned him a loyal following

among Chronicle's readers and attracted the attention of other

media. His third Sunday Punch article, which Chronicle entitled

Requiem for Mr. Squirrel and published on October 26, 1986, told

of prison officials’ poisoning of squirrels that convicts had

befriended, and it prompted world-wide interest. The reaction was

reported in a lengthy profile of Martin by Los Angeles Times writer

Miles Corwin, which Chronicle reprinted in Sunday Punch under

the title Storyteller Laureate of Lompoc Prison, along with a

commentary by Martin, on April 19, 1987.

Martin's thirteenth bylined Sunday Punch commentary,

published on November 29, 1987, had an even greater impact.

Entitled by Chronicle The 23-Year-Old ‘Career Criminal,’ the

article told the story of Lompoc inmate Kevin Sherbondy,

sentenced under a revised federal “‘career criminal” statute to

fifteen years in prison without parole for owning a firearm that he

believed to be inoperable. The article resulted in an outpouring of

support for Sherbondy, including inquiries to the Justice

Department from members of Congress. Respondent R. H. Rison,

the Lompoc warden, sent reply letters to Chronicle readers who

had written to President Reagan about Sherbondy's case. With

new counsel—hired with money raised by Chronicle readers—

Sherbondy won his release from prison shortly thereafter, see

United States v. Sherbondy, 865 F.2d 996, 1011 (9th Cir. 1988),

and he testified at the trial of this case.

Martin's eighteenth bylined Sunday Punch commentary

resulted in solitary confinement and transfer to a prison in a

different state. The article, entitled by Chronicle 7he Gulag

Mentality and published on June 19, 1988, criticized Warden Rison

and his predecessor for certain changes they had made at the

prison. Martin implied that Rison's actions had increased tension

among prisoners and caused violence. When Rison received a

copy of the article in the mail on June 21, 1988, he placed Martin

in solitary confinement. After a spate of media inquiries, Rison

released Martin from “the hole” two days later. On June 30, 1988,

prison officials seized Martin in the Lompoc yard and moved him

? This was reported in a May 23, 1988 C/nronicle article by Martin, entitled

Letters of Support Get Reply From Warden. The article, published in the main

news section as a sidebar to a larger article aboutt the Sherbondy matter, contained

Martin's byline and an identification line stating that he was a convict at Lompoc

and a frequent contributor to Sunday Punch

to a federal prison facility in San Diego, from which he was moved

to the Federal Correctional Institution at Phoenix.

Respondent Tom Curd, the assistant warden at Lompoc,

issucd a news release as “acting warden,” stating that Martin's

becoming a “compensated byline journalist” for Chronicle was in

violation of Section 540.20(b) of Title 28 of the Code of Federal

Regulations, that there was evidence that Martin would continue to

publish in violation of prison policy; and that Martin had been

transferred “pending the outcome of a full investigation into policy

violations.” Prison officials informed Martin that he had

committed Prohibited Act 408, “Conducting a business.” 28 C_F.R

§ 541.13, see id. § $40.14(d)(4) (prohibition to “direct a business”).

id. § 540.45 (prohibition to “engage actively in a business or

profession’’)

B The Substantial Expenditure of Judicial and Other Resources

in the Tnal Court —_

On July 6, 1988, petitioners Martin and Chronicle filed

this action in the district court, naming as defendants Warden Rison

and other federal prison officials. An amended complaint added

respondent Federal Bureau of Prisons (“BOP”) as a defendant and

Nancy Hoffman, a Chronicle reader, as a plaintiff.’

In their complaint, petitioners alleged that Section

540.20(b) violated the First Amendment “on its face and as applied

and is unconstitutionally vague.” First Amended Complaint § 26,

The distnct court subsequently dismissed Ms. Hoffman's claims. She did

not appeal

Appendix at 52.‘ Petitioners sought declaratory, injunctive and

monetary relicf, including a permanent injunction prohibiting

respondents from enforcing Section 540.20(b) against Chronicle,

Martin or anyone else, First Amended Complaint at 12 8-16,

Appendix at 54, and “[cjompensatory and punitive damages under

the Bivens doctrine for defendants’ const:tutional torts.” First

Amended Complaint at 13:20-23, Appendix at 55

At petitioners’ request, the district court on July 14,

1988, issued a temporary restraining order that, among other things,

prohibited respondents from retaliating against Martin or Chronicle

for the writing or publication of Martin's articles. On November

10, 1988, after limited discovery, the district court denied

cross-motions for summary judgment and granted petitioners’

motion for a preliminary injunction. The court issued a written

injunction on March 7, 1989, forbidding respondents to enforce the

publication restrictions’ against Martin pending the outcome of this

action. Under the district court's protection, by the time trial began

in late autumn of 1989, Chronicle had published about a dozen

commentarics in Sunday Punch with Martin's byline and the

information that he was incarcerated in the Federal Correctional

Institution at Phoenix

* The issue of whether the prohibitions to conduct or direct a business, as

applied to freelance writing, violated the First Amendment or were unconstitu-

tionally vague was litigated at tral, decided by the district court, and bnefed by

all parties to the Court of Appeals. See 741 F. Supp at 1410 & n4, 1418,

Appendix at 7 & n4, 23-24. Martin claimed violation of his Fifth Amendment

due process nghts. First Amended Complaint 4 27. Appendix at 52. He also

raised Fourth Amendment and Sixth Amendment claims First Amended

Complaint F{ 27, 29, Appendix at 52, 53

* The term “publication restrictions” is used herem to refer to Section

$40 20(b)} and, insofar as they are applied to freelance wnting, the prohibitions to

conduct, direct or engage actively im a business

The parties spent much time and money on discovery.

In addition to interrogatories, requests for admissions and document

production demands, the parties took dozens of depositions, some

of which were spread over several days. Former baseball star

Denny McLain, who won the Cy Young and American League

Most Valuable Player awards in 1968 by posting 31 victories for

the world champion Detroit Tigers, testified by deposition about

articles he had published while incarcerated in federal prison.

Former seven-term U.S. Representative George Hansen gave

similar testimony. Christopher John Boyce, whose experiences

were the basis for the book and film The Falcon and the Snowman,

gave deposition testimony from prison regarding his published

writing. Edward R. Jones, author of Hacksaw, and Dennis

Lehman, author of The Gethacks of Mother Superior, both testified

from prison about their publications while incarcerated. Several

others gave similar deposition testimony.

Respondents expended considerable government

resources in defense of this action.° For example, Clair Cripe, then

general counsel to the BOP, came to San Francisco both for a

deposition and to testify at trial. Rison, the Lompoc warden, gave

multiple-day deposition testimony and trial testimony. Numerous

other BOP officials testified, in most cases both by deposition and

live at trial. Respondents brought in former BOP Director Norman

Carlson to testify as an expert witness at trial. Several other expert

witnesses, from points near and far, were called by both sides.

In a pretrial order, the district court determined that the

trial would be bifurcated: First, there would be a court trial on

petitioners’ claims for declaratory and injunctive relief; then, if

constitutional violations were found, petitioners’ claims for damages

After prevailing in the district court, respondents filed a cost bill for over

$11,000.

would be the subject of a jury trial. The court trial lasted several

weeks. Martin was brought to San Francisco from the Phoenix

prison for the trial, and federal marshals were with him in court at

all times. The parties filed three lengthy post-trial briefs. After

closing arguments on February 8, 1990, the district court took

several months to render a decision. On June 26, 1990, the district

court entered judgment for respondents, accompanied by a

fifty-two-page opinion. Since the court found no constitutional

violations, the second phase of the trial never was conducted.

C. The Significant Efforts Expended on Appeal and the

Frustration of Those Efforts by the Ninth Circuit's Ruling

Chronicle filed a notice of appeal on July 23, 1990.

Martin's appeal followed on August 6, 1990. Martin asked the

district court for leave to proceed in forma pauperis, which was

granted over respondents’ opposition, the district court stating that

the appeal “presents substantial questions.”

The Court of Appeals received six briefs on the merits,

including an amicus brief on behalf of the Society of Professional

Journalists, the American Society of Newspaper Editors, the

Associated Press, and several other prominent news organizations

and journalism societies.’ These amici underscored the national

” The Society of Professional Joumalists and several other prestigious

organizations have presented awards to Martin and Sunday Punch editor Peter Y.

Sussman in recognition of both the informational value of their Chronicle pieces

and their effort to vindicate important First Amendment nights of publishers and

readers in this action. Other examples of public interest in this case include a

unanimous June 1989 resolution of the San Francisco County Board of

Supervisors that recited some of Martin's and Sussman's accomplishments;

descnbed this litigation, including the preliminary injunction then in effect; and

urged the BOP to recognize what the lawmakers asserted was the First

importance of the issues presented. Briefing was complete by

Apmnil 1, 1991. The Court of Appeals heard oral argument on

August 23, 1991.8

After argument but before the Ninth Circuit decided the

appeal, on February 20, 1992, the BOP released Martin on parole.

He remains in the custody of the Attorney General and still is

subject to broad restrictions concerning his behavior and economic

activity. His Certificate of Parole is set forth in the Appendix at

57-62. It imposes a number of conditions on him until the year

2013 and provides that he may be re-incarcerated for a variety of

reasons, including violation of a number of broad conditions. In

addition, Martin is required each month to submit a completed

report form and is subject to revocation of parole for giving a false

answer to any of the form's questions about such matters as his

work, his income eared, and money received other than from

employment. See 18 U.S.C. § 1001.

The publication restrictions have not been changed, and

Chronicle remains subject to their limitations. Sunday Punch editor

Peter Sussman, who often publishes freelance writers’ work in

Sunday Punch, regularly receives submissions from convicts and is

interested in publishing those which, like Martin's published pieces,

offer readers insight into a world that most of them know little

about despite the fact that it is maintained with their tax dollars.

As Sussman stated in a declaration opposing dismissal on mootness

grounds, Appendix at 63-64, the publication restrictions inhibit

Chronicle's publishing convicts’ submissions. For example,

Amendment nght of all federal prisoners to write articles for publication in news

media. (The resolution was offered as Exhibit 69 at trial but was not admitted

See 741 F. Supp. at 1409 n.1, Appendix at 4 n.1.)

* By a two-to-one vote of the Court of Appeals panel, broadcast media

requests to record the argument were denied on August 20, 1991.

Dien ieatiaiia ane

Sussman must depart from his usual practice of placing bylines on

first-person commentary or must subject the author to punishment

for violating the prohibition to “publish under a byline.” It is not

clear to Sussman what he can publish without subjecting the author

to punishment for violating the prohibition to “act as reporter.”

Even if Chronicle publishes a convict's submission, it cannot give

the author its customary compensation to encourage future

submissions.

A letter sent by respondent Quinlan, Director of the

BOP, to Chronicle's publisher during the pendency of the appeal

gives Sussman and his Chronicle colleagues even more reason to

hesitate to publish convicts’ submissions. The March 15, 1991

letter, Appendix at 66-68, suggests that Chronicle violates the

publication restrictions when it publishes anything written by a

convict, even without a byline and without payment. Quinlan's

letter particularly discourages publication in the main news section

of the Chronicle, stating that it is of even “greater concern” than

publication in Sunday Punch.

After releasing Martin to a halfway house and again after

his parole, respondents raised the issue of mootness. The parties

filed seven briefs in the Court of Appeals on this subject, some

accompanied by declarations.

On April 28, 1992, the Ninth Circuit, per curiam, issued

a published decision stating, in its entirety:

Because of appellant Martin's release on

parole, we find that the entire case is now

moot. The judgment of the district court,

reported at 741 F. Supp. 1406 (N.D. Cal.

1990), is VACATED and this matter

REMANDED with directions to dismiss on

the ground of mootness.

962 F.2d at 960, Appendix at |.

On September 21, 1992, the Ninth Circuit denied

rehearing, one judge dissenting, and rejected petitioners’ suggestion

of rehearing en banc. Appendix at 41-42. This petition follows.

D. Statement of Basis for Federal Jurisdiction Pursuant to

Rule 14.1(i)

Petitioners invoked the district court's jurisdiction under

Sections 1331, 1361, 2201, and 2241 of Title 28 of the United

States Code, Section 702 of Title 5 of the United States Code, and

the federal constitutional provisions cited in the complaint. 741 F.

Supp. at 1408, Appendix at 3. The jurisdiction of the Court of

Appeals to review a judgment of the district court was invoked

under Section 1291 of Title 28.

REASONS WHY CERTIORARI SHOULD BE GRANTED

I. Certiorari Should be Granted to Consider the Circumstances,

If Any, in Which Article III Mandates That an Appeal Under

Submission Must Be Dismissed as Moot.

A. The Unclear State of Mootness Jurisprudence

This case gives the Court an Opportunity to consider

whether—and, if so, to what extent—Article III's limitation of the

federal judicial power to “Cases” and “Controversies” prohibits

federal courts from deciding moot cases.” To the extent that

By no means do petitioners concede that this case is moot. For the

reasons explained infra Parts II and III, it is not; this is reason enough to grant

certiorari and reverse the judgment of the Court of Appeals, especially in view of

the considerable public interest in this case and the enormous waste of judicial,

ist pnecclanaiaianeaiiati eee

mootness determinations are guided by prudential considerations,

the Court has an opportunity to articulate the factors that should

guide a court of appeals, or a district court, in deciding whether to

dismiss a fully submitted case as moot.

The Court's pronouncements on the subject to date have

been sparse and somewhat contradictory. On several occasions, the

Court has refused to terminate litigation in which the plaintiffs’

claims for relief have evaporated, recognizing that “the strict,

formalistic view of Article III jurisprudence” is “riddled with

exceptions” motivated by “practicalities and prudential

considerations.” United States Parole Comm'n v. Geraghty, 445

U.S. 388, 406 n.11 (1980). Chief Justice Rehnquist has questioned

the Article III basis for mootness doctrine. Honig v. Doe, 484 U.S.

305, 330-31 (1988) (Rehnquist, C.J., concurring). On other

occasions, the Court has implied that Article III prohibits federal

courts from deciding moot cases. E.g., Press-Enterprise Co. v.

Superior Court, 478 U.S. 1, 6 (1986). This Term, for example, the

Court referred in passing to a “settled” principle “that a federal

court has no authority ‘to give opinions upon moot questions.”

Church of Scientology v. United States, 61 U.S.L.W. 4003, 4004

(1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895))."°

governmental and private resources that will result if the case is not decided on

the merits. The discussion in Part I, however, assumes arguendo that neither

petitioners’ damage claims nor the continuing injury inflicted on Chronicle by the

publication restrictions saves this action from mootness.

statements, the Court gave no explanation for the stated lack of jurisdiction over

moot cases. So far as petitioners are aware, the Court has never suggested that

any constitutional or statutory provisions other than Article III deprive federal

courts of power to decide moot cases.

Neither the plain language nor the history of Article III

compels the conclusion that an action in the posture of the instant

one is not a “case” or “controversy.” See Evan T. Lee,

Deconstitutionalizing Justiciability: The Example of Mootness, 105

Harv. L. Rev. 603, 636-43 (1992). Indeed, it seems that the notion

of an Article III basis for mootness dismissals entered the Court's

jurisprudence casually, without examination. Jd. at 611-12 (noting

that Article III was not mentioned in connection with mootness

until 1964, in a footnote in the Court's opinion in Liner v. Jafco,

Inc., 375 U.S. 301, 306 n.3 (1964), in which the Court refused to

find mootness).

Moreover, the Court often has held that Article III

jurisdiction exists despite major changes in the status of the party

seeking judicial relief,'' alteration or abandonment of the policy

whose legality is at issue,'? or termination of the event that gave

rise to the dispute.'’ To say, for example, that where an issue is

"' E.g., Roe v. Wade, 410 U.S. 113, 125 (1973) (challenge to abortion law

not moot despite fact that plaintiff no longer pregnant), Geraghty, 445 U.S. 388

(prisoner challenge to parole release guidelines not moot despite named plaintiff's

release on parole).

- a City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 & n.10

(1982) (case not moot despite repeal of city ordinance at issue), United States v.

W. T. Grant Co., 345 U.S. 629, 632 (1953) (Clayton Act case not moot despite

resignation of interlocking director).

* Be. Press-Enterprise, 478 U.S. at 6; Globe Newspaper Co. v. Superior

Court, 457 U.S. 596, 602-03 (1982), Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 563 (1980), Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546-47

(1976). In all these cases, the proceeding at issue had been completed, and the

order challenged by the press had expired. Because, however, the issue could

come up again at any time, and there might be inadequate time for full judicial

review, the Court refused to hold the cases moot.

“capable of repetition, yet evading review,” the litigation may

“continue notwithstanding the named plaintiff's current lack of a

personal stake,” Geraghty, 445 U.S. at 398, is to acknowledge that

Article III does not mandate dismissal for mootness.'* Rather, it is

apparent that “practicalities and prudential considerations” often

govern. 445 US. at 406 n.11.

Petitioners do not suggest that federal courts should have

unbridled discretion to decide the merits of moot cases. The Court

should articulate guidelines to govern the exercise of jurisdiction.

Some meritorious guidelines are proposed by Professor Lee, who

opines that, when a federal court is confronted with a suggestion

of mootness,

the main inquiry should be whether the likely

preclusive effect of a judgment or the likely

precedential effect of a decision on appeal

would justify the expenditure of judicial

resources necessary to adjudicate the merits.

Lee, supra p. 12, 105 Harv. L. Rev. at 656.

A related question—an important one in this case—is

whether the changed circumstances would so seriously affect the

reliability or precedential effect of a final decision on the merits as

to justify the waste of judicial resources (and other resources) that

would result from a refusal to adjudicate the merits. As the Chief

Justice has stated, the time spent preparing to decide a case by

reading briefs, hearing oral argument and conferring is squandered

when, after the decisional process is underway, a court is prevented

'* Petitioners recognize that the Court has sometimes characterized cases that

present no live controversy but that are “capable of repetition, yet evading review”

as “not moot.” E.g., Richmond Newspapers, 448 U.S. at 563. Petitioners submit

that such cases are more accurately described as “lawsuits which are ‘moot’ but

which also raise questions which are capable of repetition but evading review.”

Honig, 484 U.S. at 330 (Rehnquist, C.J., concurnng).

from reaching the issues. Honig, 484 U.S. at 332 (Rehnquist, C.J.,

concurring).'°

The manner in which this Court has analyzed the power

to decide supplemental state law claims even after dismissal or

resolution of the anchoring federal claim provides a useful analogy.

In such situations, jurisdiction over the remaining state law claims

is to be decided with “flexibility,” considering “the values of

judicial economy, convenience, faimess, and comity.”

Carnegie-Mellon Univ. v. Cohiil, 484 U.S. 343, 350 (1988).

In Rosado v. Wyman, 397 U.S. 397, 403-04 (1970), for

example, this Court reviewed a lower court's decision to decide a

pendent claim after the anchoring federal claim had become moot.

This Court affirmed and emphasized that the lower court had held

hearings on the matter before the mooting event occurred and that

the question to be decided involved a matter of federal policy. The

Court stated:

We are not willing to defeat the

commonsense policy of pendent jurisdiction—

the conservation of judicial energy and the

avoidance of multiplicity of litigation—by a

conceptual approach that would require

jurisdiction over the primary claim at all

Stages as a prerequisite to resolution of the

pendent claim.

Id. at 405.

'S The Chief Justice, noting this Court's “unique” resources and ability to

bind all other courts, confined his advocacy of a change in mootmess doctrine to

cases that become moot after this Court has undertaken consideration of them.

Honig, 484 U.S. at 332 (Rehnquist, C_J., concurring). Petitioners submit that the

resources of other federal courts also are worthy of conservation. See Lee, supra

p. 12, 105 Harv. L. Rev. at 656 n.285.

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The lower courts have, when appropriate, affirmed the

retention of jurisdiction in such cases. Such a resolution is

particularly justified if the case is approaching trial and a good deal

of judicial time and effort has been invested in it. Schneider v.

TRW, Inc., 938 F.2d 986, 994 (9th Cir. 1991); see also Newport

Lid. v. Sears, Roebuck & Co., 941 F.2d 302, 307-08 (Sth Cir.

1991) (abuse of discretion to dismiss supplemental claims where

“hundreds of Court hours” devoted to case and litigation had

reached “the eve of trial after years of difficult discovery”), cert.

denied, 117 L. Ed. 2d 420 (1992). The same “values of judicial

economy, convenience, [and] fairness” that must be considered in

deciding whether to dismiss supplemental claims should be

considered in deciding whether to dismiss an action as moot.

Petitioners do not suggest that every case in which some

judicial resources have been expended ought to continue in spite of

mootness. The mootness doctrine should, however, be flexible

enough that, if an action has reached an advanced stage and the

parties and courts have expended considerable resources on it,

those facts are considered in determining whether the case will be

decided on its merits.

B. The Compelling Reasons for This Case to Be Decided

on the Merits

The Ninth Circuit did not explicitly rely on Article III,

or any other authority, for its determination that this entire case is

moot and must be dismissed. Nothing less than constitutional

compulsion, however, could justify the action taken by the Court

of Appeals. All conceivable “practicalities and prudential

considerations” militate in favor of resolution of the legal issues.

Petitioners submit, in particular, the following:

1. The trial consumed several weeks, involving as it did

lay and expert witnesses from around the country. The district

judge wrote and published a lengthy opinion. 741 F. Supp. 1406,

Appendix at 2-40. The appeal was fully briefed, including an

amicus brief. The appeal was orally argued and submitted to the

Court of Appeals. Only then did the BOP release petitioner Martin

and claim mootness. A dismissal based on mootness results in a

pointless waste of judicial resources.

2. The controversy in this case is not an isolated

dispute affecting individuals but a challenge to federal regulations

of nationwide and continuing application. The publication

restrictions are alleged to violate the First Amendment guarantees

of freedom of speech and of the press. They are attacked not

merely as applied to petitioner Martin but on their face. The

regulations remain in full force and effect, with the BOP standing

ready to enforce them against any prisoner who attempts freelance

newspaper writing. If any prisoner should dare to write in

violation of the regulations, and he happens to be serving a

relatively short sentence, his case will evade judicial review.’ The

'* The likelihood that a certain type of case will evade review is relevant to

whether an otherwise moot example of that type of case should be decided on its

ments, however, it is not (and should not be) necessary to demonstrate that every

such case will imevitably evade review. Even those Justices least inclined to

decide the ments of moot cases agree that the “yet evading review” factor “is

prudential; whether or not that criterion is met, a justiciable controversy exists.”

Honig, 484 U.S. at 341 (Scalia, J., dissenting). Accordingly, the evasiveness of

the type of litigation at issue should be regarded as one factor in deciding whether

to dismiss a particular case.

}

UL aeR ad Ww

20 ANS hte 8

constitutionality of the publication restrictions is an important

question that ought not to go unsettled.'’ .

3. Petitioner Chronicle remains vitally interested in the

constitutionality of the regulations, which continue to inhibit its

exercise of editorial judgment. See Appendix at 63-64 (Peter

Sussman's declaration). This ensures (even if petitioner Martin had

somehow lost any interest in the case, which he has not) that a

concrete, adversarial resolution of the legal issues will be achieved.

The fact pattern of this case indisputably is “capable of repetition”

as between respondents and Chronicle, which publishes a daily

newspaper, routinely publishes articles by freelance authors, and

maintains an interest in reporting about prisons.'* Indeed, while the

appeal was pending in the Ninth Circuit, respondent Quinlan,

Director of the BOP, wrote to Chronicle's publisher to lecture him

on his responsibilities under the district court decision. Appendix

at 65-68."

'" The importance of the issues is illustrated by the Court's recent

invalidation, on First Amendment grounds, of a state statute requiring profits

derived by criminals from exploitation of their crimes to be deposited in escrow

to satisfy victims’ claims. Simon & Schuster v. Members of the N.Y. State Crime

Victims Bd., 116 L. Ed. 2d 476 (1991). The district court in the instant case cited

the existence of “Son of Sam” statutes, such as the one invalidated in Simon &

Schuster, in support of the constitutionality of the publication restrictions. 741 F

Supp. at 1416, Appendix at 18.

'* The question is whether the controversy is “capable” of repetition, not

whether the plaintiff has “demonstrated that a recurrence of the dispute [is] more

_probable than not.” Honig, 484 US. at 319 6.

'? The issue also is capable of repetition as to Martin. He remains in the

custody of the Attorney General and is subject to being retumed to prison at any

time before the year 2013. See cases cited infra Part II.

In short, this is the kind of case that should not be

dismissed as moot. As Professor Lee explains, in determining

whether a case “offers sufficient precedential promise” to justify a

final decision on the merits despite mootness, the Court should ask

questions such as:

Are the facts concrete or still evolving? Are

they typical or atypical of disputes likely to

arise among others? Is counsel sophisticated

enough to help the court develop “cutting

edge” law? Do the parties have sufficient

motivation or incentives to spur them into

making the fullest presentations on behalf of

their respective positions?

Lee, supra p. 12, 105 Harv. L. Rev. at 656-57 (footnotes omitted).

The answers in this case all point to reversal of the Ninth Circuit's

holding of mootness. The Court should grant certiorari to clarify

that Article III does not mandate the decision below and the

consequent waste of judicial resources.

Il. Certiorari Should Be Granted Because the Decision Below

Conflicts With the Decisions of Other Circuits.

The Ninth Circuit's decision that petitioner Martin's

release on parole requires dismissal of the appeal as moot conflicts

with the decisions of at least two other circuits, the Tenth and the

Seventh. See McKinney v. Maynard, 952 F.2d 350, 351 (10th Cir.

1991) (neither damage nor injunctive relief claims moot);

Chapman v. Pickett, 586 F.2d 22, 26 (7th Cir. 1978) (defendants

immune from damage claims, but injunctive and declaratory relief

claims not moot); Morales v. Schmidt, 489 F.2d 1335, 1336 (7th

Cir. 1973) (injunctive relief claim not moot); see also Chiles v.

Thornburgh, 865 F.2d 1197, 1203 (11th Cir. 1989) (challenge to

use of detention facility not moot because “it is quite possible” that

officials might decide to place felons in it).”°

The circuits, thus, are in conflict over this important and

recurring mootness issue. Certainly, this case frames the issue in

concrete terms: Martin challenges regulations with continuing and

widespread impact; the terms of his release impose conditions that

permit re-incarceration for a variety of reasons; and the mootness

decision here was made as the case was on the verge of decision

in the appellate court after a contested district court trial.

The factors presented in this case have resulted in circuit

decisions that simply are irreconcilable. Accordingly, certiorari

should be granted to resolve the conflict in the circuits and deal

with an issue that occurs in the lower courts with some frequency.

The Ninth Circuit's mootness determination in this high-profile published

decision seems to depart even from its own prior decisions. The Ninth Circuit had

previously concluded that a prisoner's release on parole does not render an appeal

moot. Diamontiney v. Borg, 918 F.2d 793, 795 n.1 (9th Cir. 1990), Workman v.

Mitchell, 502 F.2d 1201, 1207 n.7 (9th Cir. 1974).

III. Certiorari Should Be Granted Because the Decision Below

Conflicts With Binding Precedent of This Court Holding

That the Presence of Outstanding Unresolved Damage

Claims or the Ability to Grant Some Effective Relief

Precludes a Finding of Mootness.

The Court has always held that an unresolved damage

claim prevents a finding of mootness.?’ The complaint here seeks

damages “for defendants’ constitutional torts.” First Amended

Complaint at 13:22, Appendix at 55. Under this Court's prece-

dents, such a damage claim precludes any finding of mootness.

In this case, petitioner Martin may be able to recover

damages for being subjected to the challenged regulations quite

apart from whether the BOP “retaliated” against him for protected

speech. The district court never reached his damages claims, and

Martin was not permitted to put on his full evidence supporting

them, because the district court bifurcated the trial. The district

court limited the trial “to the so-called injunctive issues” (quoting

transcript of pretrial Proceedings). For that reason, there was no

jury, and any further Proceedings as to damages depended on the

court's rulings on the equitable issues. The court thus deferred

indefinitely and never decided the issues of whether the individual

defendants were entitled to immunity.

The Ninth Circuit, however, remanded with directions to

dismiss the “entire case” as moot. This cannot be done, under the

cases holding that damage claims preclude mootness, without ruling

See, e.g., City of Richmond v. JA. Croson Co., 488 U.S. 469, 478 n1

(1989), Board of Pardons v. Allen, 482 U.S. 369, 370 n1 (1987), Boag v.

MacDougall, 454 U.S. 364, 364 (1982); Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

154 n.3 (1978); Powell v. McCormack, 395 U.S. 486, 498-500 (1969) (claim for

salary prevented mootness).

Bo Na ier a ANA ria 0.

on the merits that no damage claim can be maintained. For

example, to the extent that the prison, official defendants contend

that no damages can be awarded because they have a good faith

immunity from such liability, this issue has to be determined on its

merits before any finding of mootness could be made.

In Board of Pardons v. Allen, 482 U.S. 369 (1987), a

case in which the prisoner plaintiffs had been released, the Court

held that the case was not moot because the Court had not

definitively resolved immunity questions and, therefore, ““the

validity of [the prisoners'] claim for damages... [was] not so

insubstantial or so clearly foreclosed by prior decisions that this

case may not proceed.”” Jd. at 370 n.l (quoting Memphis Light,

Gas & Water Div. v. Craft, 436 U.S. 1, 8-9 (1978)).

Indeed, the Ninth Circuit's action in this case contradicts

its Own recent mootness analysis in Yniguez vy. Arizona, 975 F.2d

646 (9th Cir. 1992). In that case, a state employee challenged, on

federal constitutional grounds, an Arizona constitutional provision

requiring all state employees to speak only English. After the

plaintiff ceased to be a state employee, the State suggested that the

case was moot. The Court of Appeals responded:

Although the plaintiff may no longer be

affected by the English only provision, that

does not render her action moot. The

plaintiff's constitutional claims may entitle her

to an award of nominal damages. See Carey

v. Piphus, 435 U.S. 247, 258-59 (1978). A

plaintiffs pursuit of nominal damages

provides a sufficiently concrete interest in the

outcome of the litigation to confer standing to

pursue declaratory relief and thereby prevents

mootness.

975 F.2d at 647 (footnote and parallel citations omitted). If a

nominal damages claim was sufficient incentive for the plaintiff in

Yniguez to pursue declaratory relief, the same is true of petitioners’

damage claims in this case.

Moreover, under this Court's precedents, a case is not

moot if a party can be given “some form of meaningful relief.”

Church of Scientology, 61 U.S.L.W. at 4004 (emphasis by the

Court). In this case, the damage claims aside, the courts can give

Chronicle effectual relief by declaring the publication restrictions

unconstitutional and prohibiting the BOP from enforcing them.

This will allow Chronicle to exercise its editorial judgment with

respect to submissions from federal prisoners in the same fashion

that it does with other freelance submissions. Thus, even assuming

(incorrectly) that it is now impossible for Martin to be given

meaningful relief, that is not true of Chronicle 2?

Accordingly, the Court should grant certiorari to

maintain the integrity of its precedents foreclosing dismissal on

mootness grounds where there is an unresolved damage claim or

some other effectual relief can be granted.

% Although the Ninth Circuit's order implies that Chronicle's claim is

dependent on Martin's, there is no basis for such a “relational mootness” approach.

A publisher such as Chronicle is every bit as much a “First Amendment “speaker’”

as is an author such as Martin. Simon & Schuster, 116 L. Ed. 2d at 487. Just as

requiring the publisher in Simon & Schuster to put the author's eamings into

escrow was a “disincentive[] to speak” that the publisher could challenge, id, the

BOP's prohibition on paid publications in news media is a disincentive to speak

that Chronicle is entitled to challenge. Respondents argued unsuccessfully to the

distnct court that Chronicle lacked independent standing to challenge the

publication restrictions even though they obviously affected its editorial

decisionmaking and readers. 74] F.Supp. at 1409, Appendix at 3-4. Respondents

abandoned this argument on appeal.

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CONCLUSION

For the reasons stated, the Court should grant certiorari,

reverse the decision of the Ninth Circuit and remand the case to

that court with directions to decide the merits.

Dated: December 18, 1992.

WILLIAM BENNETT TURNER

(Counsel of Record)

ROGERS, JOSEPH, O'DONNELL & QUINN

311 California Street, 10th Floor

San Francisco, CA 94104

Telephone: (415) 956-2828

JAMES M. WAGSTAFFE

MARTIN KASSMAN

COOPER, WHITE & COOPER

201 California Street, 17th Floor

San Francisco, CA 94111

Telephone: (415) 433-1900

1068-3 R

APPENDIX

4 Order Delivered Upon Rendering of Judgment by Court of

Appeals (Rule 14.1(k)(i))

[The following was filed in the Court of Appeals on

April 28, 1992 (caption, counsel and date information omitted). ]

ORDER

Because of appellant Martin's release on parole, we find that

the entire case is now moot. The judgment of the district court,

reported at 741 F. Supp. 1406 (N.D. Cal. 1990), is VACATED

and this matter REMANDED with directions to dismiss on the

ground of mootness.

Appendix-|

IT. Opinion of District Court (Rule 14.1(k)(ii))

[The following was filed in the district court on June 26.

1990.)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DANNIE MARTIN and THE

CHRONICLE PUBLISHING

COMPANY,

Plaintiffs, No. C-88-2570-CAL

)

R. H. RISON, Warden for the United )

States Penitentiary at Lompoc, )

California; TOM CURD, Assistant )

Warden; PAUL HOFER, Executive )

Assistant to the Warden; JERRY )

WILLIFORD, Director, Western Region )

Federal Bureau of Prisons; and the )

FEDERAL BUREAU OF PRISONS, )

)

Defendants.

‘ innietoctinnnil

Appendix-2

NOTA Alita Si ntl th tnt Ate a ete MG ii) aie

OPINION

This action was tried to the court, sitting without a jury, and

was briefed, argued and submitted for decision. The court has

heard and reviewed the testimony of the witnesses, and has

reviewed the record, the exhibits admitted into evidence, the depo-

sition transcripts admitted into evidence, the answers to interroga-

tories, the applicable authorities, and the arguments of counsel.

This opinion constitutes the court's findings of fact and conclusions

of law, as provided in Rule 52(a) of the Federal Rules of Civil Pro-

cedure. The facts stated below are found to be facts by a prepon-

derance of the evidence, and by applying the burdens of proof dis-

cussed in paragraph VI.

JURISDICTION

This court has jurisdiction pursuant to 28 U.S.C. §§ 1331,

1361, 2201, and 2241, and 5 U.S.C. § 702, et seq. 1982), and the

first, fourth, fifth, and sixth amendments to the United States

Constitution. Venue is proper in this district pursuant to 28 U.S.C.

§§ 1391(b) and (e) (1982), because one defendant resided in this

district at the time the suit was filed and some of the acts that gave

rise to plaintiffs’ claims occurred in this district.

Defendants have contested subject matter jurisdiction, on the

grounds of the defense of sovereign immunity from plaintiffs’

claims for monetary relief. However, because of the conclusions

reached below, this court need not discuss that contention. Defend-

ants also asserted that this court lacks subject matter jurisdiction

over the claims of plaintiff The Chronicle Publishing Company,

because The Chronicle lacks standing to assert those claims. That

Appendix-3

motion was previously denied by this court. Defendants also

objected to venue, but defendants’ objections were denied.'

II.

SUMMARY OF FACTS

Plaintiff Dannie Martin is a convicted felon, who at the time

of these events was incarcerated in the U.S. Penitentiary in Lom-

poc, California. The nature of Martin's conviction and his sentence

need not be discussed here. Martin was assigned to Lompoc Peni-

tentiary in part because his prison security level is consistent with

that of Lompoc. Lompoc Penitentiary and its adjacent prison camp

house approximately 2200 prisoners. Plaintiff The Chronicle Pub-

lishing Company is the publisher of “The San Francisco

Chronicle," a newspaper of general circulation.

'The Court now mules on the following evidentiary and procedural issues

which arose during the trial: (1) Plaintiffs’ motion to file a further amendment to

the complaint is denied. The claims they seek to assert (that as a matter of

regulatory interpretation plaintiff Martin did not violate the Bureau of Prisons

regulations regarding compensation, bylines, being a reporter and conducting a

business) are legally incorrect for the reasons discussed in this opinion. (2)

Defendants’ motion for dismissal as a matter of law, under Rule 41(b) of the

Federal Rules of Civil Procedure, is denied. The issues raised in that motion are

instead ruled upon in this opinion under the standard of a preponderance of the

evidence and under the applicable law. (3) The declarations of N. Brooks and B.

Hairsch tendered by plaintiffs, and defendants’ offer of proof regarding the

testimony of certain witnesses, filed on January 5, 1990, are admitted into

evidence and have been considered by this court in making the findings of fact

and conclusions of law. (4) All deposition designations by both plaintiffs and

defendants are admitted into evidence. (5) Exhibits | through 31 are not admitted

into evidence. Insofar as the exhibits are offered by plaintiffs to show that other

inmates wrote articles and received a byline or compensation, this court is

assuming those facts for purposes of this opinion. (6) Exhibits 65 through 69 are

not admitted into evidence, because of lack of relevance and hearsay.

Appendix-4

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}

While in prison, Martin developed skills as a writer. For

approximately two years before the events in question here, Martin

wrote articles and submitted them to The Chronicle. His articles

were generally about prison life. Some were critical of prison

authorities and some were not. The Bureau of Prisons took no

action against Martin for any of his articles until the Gulag article

discussed below.

The Chronicle published approximately 18 of Martin's

articles in a features section of Sunday editions of The Chronicle.

The Chronicle treated Martin as a features writer, printed his byline

on his articles,” and identified him as a prisoner in Lompoc. When

it received articles from Martin, The Chronicle did some editing,

had some conversations with Martin about changes, wrote the head-

lines, did the art work, and selected the pull-quotes to be set within

the articles. Martin's articles were well received by the public.

The Chronicle paid Martin for each of the articles. The

Chronicle's payments went to Martin's attorney, because of Bureau

of Prison regulations that limit an inmate's access to cash, and

because of one of the regulations at issue here.

The events causing this suit were precipitated by an article

which Martin wrote and The Chronicle published, entitled The

Gulag Mentality, in June 1988. When that article was published

by The Chronicle and the newspaper was circulated within Lompoc

prison, prison officials became concerned about possible violence.

They placed Martin in administrative detention for a few days,

while they conducted an investigation. Martin was then released

from administrative detention. A few days later, the Bureau of

Prisons transferred Martin to another federal prison, where he is

still incarcerated. Martin has continued to write and publish in The

Chronicle under a preliminary injunction issued by this court.

2One article was published under a pseudonym, at Martin's request.

Appendix-5

The facts surrounding these events are discussed in more

detail as appropriate below.

III.

BUREAU OF PRISONS REGULATIONS

Defendants charged that Martin violated two regulations of

the Bureau of Prisons, which regulations are the focal point of

plaintiffs’ suit.

One is 28 C.F.R. § 540.14(d)(4) (1988):

An inmate . . . may not direct a business while confined.

The other is 28 C.F.R. § 540.20(b) (1988]:

The inmate may not receive compensation or anything of

value for correspondence with the news media. The inmate

may not act as a reporter or publish under a byline.

Those sections are a part of voluminous regulations of the Bureau

of Prisons for the operation of federal prisons.’ They include many

subjects not of concern in this litigation.

There are extensive regulations, some restrictive but some

very permissive, regarding contacts between inmates and the

outside world. Part 540, of which the two challenged regulations

are a portion, expressly deals with "contact with persons in the

community." Those regulations include specific sections

concerning inmate correspondence with the news media, and

contacts between prisoners and the news media. The obvious

objectives of the regulations as a whole are to permit inmates to

communicate with the outside world, and to permit the news media

to have access to inmates, to the extent that those communications

do not interfere with the security of a prison. Most of those

*All section references to the regulations are to 28 C.F.R.

Appendix-6

Ri inn aed le eg tl

regulations need not be discussed in detail. Suffice it to say that

the regulations attempt to balance the interests of the inmates,

persons outside the prisons, the news media, and the security

interests of the prison. The regulations also provide that they shall

nevertheless be subject to the authority of the prison warden to act

in preserving the security of the prison. Section 501.1 states:

"When there is an institutional emergency which the Warden

considers a threat to human life or safety, the Warden may suspend

the operation of the rules contained in this chapter to the extent he

deems necessary to handle the emergency." While this apparently

refers to a suspension of all rules for all prisoners, and hence is not

directly applicable to this case, it reflects the discretion vested in

prison wardens when there is a danger to prison security.

IV.

PLAINTIFFS' CLAIMS

Plaintiffs challenge the two regulations on _ federal

constitutional grounds. Essentially, they contend that both

regulations are unconstitutional on their face.‘ Plaintiffs also

challenge the constitutionality of the two regulations as they were

applied to Martin and as they have been applied throughout the

prison system. Plaintiffs make related allegations that defendants’

actions against Martin were in retaliation for his criticism of prison

authorities, and that Martin's due process rights were violated.

THE ROLE OF THIS COURT

Before discussing the application of the constitution to the

regulations and to the acts of defendants, it is important for this

court to note just what its role is and is not. The court's function

“Their facial challenge to § 540.14(d\4) is as that regulation is applied to the

business of wniting.

Appendix-7

is limited to determining whether defendants’ regulations and acts

met or violated constitutional requirements.

This court's function is not to determine whether Martin, or

any other prisoner, "should" be able to write for publication.

Having read Martin's articles and having heard the evidence, this

court of course has its own opinions on that subject. Martin's

articles are entertaining and educational. Some of them appear to

have actually produced worthwhile results. Martin's writing style

is light, concise, and easily readable. Many legal writers, scholars,

attorneys --- and yes, judges --- could well imitate his style.

Writing by prisoners also appears to be worthwhile for

rehabilitation, particularly if a prisoner such as Martin is able to

use it as a base for a future career outside the prison. Writing is

a healthy use of time. The writing of published articles could

provide a good role model for other prisoners. And such articles,

even if critical of the prison system, may provide a nonviolent

means to defuse tensions within a prison. The public appears to be

interested in the subject of life in prison; and light and air, literally

or figuratively, are generally healthy to any institution.

But this court's role is not that of a senior editor or a censor.

The task of running the federal prisons has been delegated by

Congress to the Bureau of Prisons, not to the courts. The Bureau

has attempted to strike a balance between freedom of expression

and prison security. This court's function is limited to determining

whether that balance is consistent with the constitution.

VI.

BURDEN OF PROOF

Who has the burden of proof in applying the requirements

of the constitution to the regulations and to the acts of the parties?

Both the burden of going forward with the evidence and the

ultimate burden of proof usually lie with plaintiffs. However,

plaintiffs here assert that the burden of proof is on defendants to

Appendix-8

demonstrate the constitutionality of the regulations. Such a shifting

of the burden is proper where the regulations at issue restrict the

speech of the general public. Philadelphia Newspapers, Inc, v.

Hepps, 475 U.S. 767, 777 (1986). Plaintiffs also rely on

Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982), subsequent

appeal dismissed, 739 F.2d 443 (9th Cir. 1984) a decision of this

circuit involving prisoners’ challenges to state prison guidelines.

However, this court believes that plaintiffs’ arguments and

Pepperling have been superseded by recent decisions of the United

States Supreme Court. That Court appears to place the burdens

upon the prisoners who challenge the constitutionality of prison

regulations. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 350

(1987); Washington v. Harper, 110 S.Ct. 1028, 1039-40 (1990);

Turner v. Safley, 482 U.S. 78 (1987); Jones v. North Carolina

Prisoners’ Labor Union, Inc., 433 U.S. 119, 128 (1977); Bell v.

Wolfish, 441 U.S. 520, 551 (1979).

The most direct recent discussion of the burdens of proof by

the Supreme Court is Thornburgh v. Abbott, 109 S.Ct. 874, 1882,

n. 12 (1989). The Court said that it was not expressly passing on

the evidentiary burdens or on the shifting of those burdens. But

the Court extended deference to the procedures used by the district

court, which applied a shifting of the procedural burdens with the

ultimate burden of proof being on the prisoners.

This court believes that the initial burden is upon plaintiffs

to establish a prime facie case that the regulations or the acts of

defendants violated plaintiffs’ claimed constitutional nights. The

burden of going forward with the evidence then shifts to defendants

to articulate a reasonable relationship between the regulations, their

acts, and some legitimate penological objective. The burden of

going forward with the evidence, and the ultimate burden of proof,

is then on plaintiffs to refute that showing, or to otherwise

invalidate the regulations and acts. Plaintiffs may attempt to do so

Appendix-9

on grounds such as pretext, other alternatives, irrational conduct, or

arbitrary conduct. For example, "a regulation cannot be sustained

where the logical connection between the regulation and the

asserted goal is so remote as to render the policy arbitrary or

irrational.” Turner, 482 U.S. at 89-90. Further, the regulations

must operate in a neutral fashion without regard to the content of

the expression. Id. at 90.

Recent Supreme Court cases might be read as defining the

burden of proof to be evidence which is "substantial" or

“conclusive”. However, this court need not define or apply those

higher measures of proof here, since it concludes that plaintiffs

have not carried their burden of proof by the measure of a

preponderance of the evidence.

VII.

CONSTITUTIONAL STANDARDS

The question of whether the regulations meet constitutional

requirements is of course governed by the Supreme Court's

decisions defining the rights, primarily the first amendment rights,

of prisoners. It is clear that prisoners do have first amendment

rights. But those rights must be balanced with their status as

prisoners and with legitimate penological objectives. As stated by

the Supreme Court in Pell v. Procunier, 417 U.S. 817, 822 (1974):

[A] prison inmate retains those First Amendment rights

that are not inconsistent with his status as a prisoner or with

the legitimate penological objectives of the corrections

system. Thus, challenges to prison restrictions that are

asserted to inhibit First Amendment interests must be

analyzed in terms of legitimate policies and goals of the

corrections system, to whose custody and care the prisoner

has been committed in accordance with due process of law.

See also Hudson vy. Palmer, 468 U.S. 517, 523 (1984).

Appendix-10

In recent first amendment cases, the Court has extended

considerable deference and discretion to the decisions of prison

administrators. The Court said in Turner v. Safley,

Running a prison is an inordinately difficult undertaking

that requires expertise, planning, and the commitment of

resources, all of which are peculiarly within the province of

the legislative and executive branches of government. Prison

administration is, moreover, a task that has been committed

to the responsibility of those branches, and separation of

powers concerns counsel a policy of judicial restraint.

482 US. at 84-85.

See also O'Lone, 482 U.S. at 349-350; Block v. Rutherford, 468

U.S. 576, 588 (1984); Harper, 110 S.Ct. at 1038; Abbott, 109 S.Ct.

at 1879; Wolfish, 441 U.S. at 547; and Jones, 433 U.S. at 128,

129. The rationale for this judicial policy is that the problems of

prison administration are ill suited to resolution by court decree,

and are more rationally within the expertise and powers of the

executive branches of government.

Coupled with this judicial deference to prison officials, the

Supreme Court has also defined a rational relationship test. That

is, prison regulations and the acts of prison officials meet

constitutional standards if they are rationally related to a legitimate

penological objective. Turner, 482 U.S. at 89-90; Abbott, 109

S.Ct. at 1882.

Plaintiffs contend that a stricter constitutional test is required

by Procunier v. Martinez, 416 U.S. 396 (1974). Plaintiffs argue

that the test defined in Martinez as survived the more recent

Supreme Court cases cited above, because Martinez dealt expressly

with communications going out of a prison and involved

consideration of the public's interests. However, Martinez was

recently discussed by the Supreme Court in Abbott, 109 S.Ct. at

1879, n. 9, and in Turner, 482 U.S at 84-89, and Martinez's holding

Appendix-! 1

has been restricted and in part disapproved by the Court. And in

the resent case we are not dealing exclusively with outgoing

communications, as was Martinez. Here, the outgoing

communications were newspaper articles which were then revised,

published, and redistributed back into the prison. Indeed, the

consequences of the writings were not created by sending them out,

but by their publication and distribution back into the prison.

Because of both that factual distinction and the Supreme Court's

recent pronouncements in Turner, Abbott, and Harper, this court

concludes that the Martinez standard is not the one applicable here.

Rather, the standard to be applied is that announced by the

Supreme Court in Tumer v. Safley. The test is whether, giving due

deference to the discretion of prison officials, their regulations and

acts bear a rational relationship to a legitimate penological

objective. As stated in Tumer v. Safley,

[W]hen a prison regulation impinges on inmates'

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests. In

our view, such a standard is necessary if “prison

administrators ..., and not the courts, are to make the

difficult judgments concerning institutional operations."

482 U.S. at 89 (quoting Jones v. North Carolina Prisoners’ Union,

433 US. at 128). This standard was recently restated in

Washington v. Harper:

[T]he proper standard for determining the validity of

a prison regulation claimed to infringe on an inmate's

constitutional rights is to ask whether the regulation is

"reasonably related to legitimate penological interests.”

This is true even when the constitutional right claimed to

have been infringed is fundamental, and the State under

other circumstances would have been required to satisfy

a more rigorous standard of review.

Appendix-12

)

110 S.Ct. at 1037 (quoting Turner, 482 U.S. at 89).

Vil.

DETERMINATION OF REASONABLENESS

Turner defined four factors which are relevant to a

determination of the reasonableness of prison regulations and

practices.

1) Whether there is a valid, rational connection between

| the prison regulation and the legitimate, neutral governmental

| interest;

2) If alternative means of exercising the constitutional

right remain open to prison inmates,

3) The impact an accommodation of the asserted right

would have on the guards and other inmates, and on the

allocation of prison resources; and

4) The absence of ready alternatives. 482 U.S. at 89-91.

This court heard extensive testimony concerning penological

objectives, the regulations, and the acts of defendants. That

) testimony included both percipient and expert testimony. There

was little difference in the testimony of the percipient witnesses;

that is, there was not much dispute as to the facts of what occurred.

There were significant differences in the conclusions reached

by the penological experts. They agreed generally on the basic

penological objectives, but they differed on whether these

regulations and their enforcement served those objectives. The

differences of opinion were grounded in part on whether the

objectives are viewed from the perspective of the prisoners, or from

: the perspective of the prison authorities. All of the experts did

agree that one of the --- if not the --- principle penological

Appendix-13

objective is to maintain security within a prison. The term “prison

security" can be and was used in several ways; ¢.g., to mean the

absence of violence, the prevention of escape, the protection of

prison staff, the protection of prisoners, and the general running of

a harmonious institution. And merely invoking the word "security"

can become a knee-jerk response to any changing situation.

However, the experts did agree that there are genuine security

concems within a prison, and that security is a major penological

objective. The U. S. Supreme Court agrees: "{C]entral to all other

correctional goals is the institutional consideration of internal

security ...." Pell, 417 U.S. at 823. The Turner v. Safley tests

must be applied in that context.

1) Is there a valid, rational connection between the

regulations and legitimate, neutral governmental interests?

Plaintiffs argue that the regulations impose a restriction on

the content of prisoners' writings. However, his is not a so-called

“prior restraint” case. That is, no attempt is made to edit, restrain

or prevent written material from going out of the prison or from

being published. The regulations do not control the content of

what is said. Plaintiffs therefore argue that inmates by virtue of

being prisoners can report only on prison affairs, and that a flat

prohibition on newspaper reporting therefore prevents anything

being written or published about prison events or conditions. But

this argument ignores the fact that the regulations do allow

prisoners to write via "special mail" to the news media. Section

540.20(a) (1988). Outgoing special mail may be sealed by the

inmate and is not subject to inspection by the prison authorities.

Section 540.18(c) (1988). Incoming special mail is opened only in

the presence of the inmate, and only to allow prison staff to inspect

for physical contraband. 28 section 540.18(a) (1988). The

correspondence cannot be read or copied by prison officials. Id.

Moreover, neither the special mail regulations nor the regulations

Appendix-14

at issue here make any reference to the subject matter of the

writings. The regulations are facially neutral with respect to

content.

What are the legitimate governmental interests served by the

regulations? Defendants’ primary objective is prison security. The

legitimacy of that governmental interest ts supported by the

testimony of the experts and by the above decisions of the Supreme

Court. There are other valid penological interests, such as

rehabilitation, which would weigh in favor of looser control by the

prison authorities. But as long as prison security is a valid interest,

the order of priority of the penological interests is for the Bureau

of Prisons and not this court to decide.

The regulations are therefore content-neutral and for stated

and legitimate governmental objective. Do the regulations

rationally and reasonably promote that objective? This court

believes that they do for the following reasons disclosed by the

evidence:

Articles about matters within a prison can create a anger of

violence, or at least threats of violence. Indeed, the testimony

demonstrated that such dangers and threats occurred in Lompoc

prison after the publication of the Gulag article.

Lompoc prison houses many prisoners requiring a high level

of security. While most prisoners, including Martin, were a level

four or below, the prison population included some at levels five

and six; six is the maximum security level. There was testimony

that Lompoc was a volatile population, with some gangs and with

frequent disciplinary problems. There had been unrest within the

prison some months earlier, when the warden temporarily limited

the use of the exercise yard, and when the prison replaced chairs

which some prisoners believed were theirs. Some causes of unrest

were mentioned in Martin's articles prior to Gulag. One of the

witnesses testified that tensions in the prison were high before

Appendix-15

Gulag, and that there had been a planned boycott of meals and

some fires. After the publication of Gulag, which gain mentioned

those incidents, inmates again complained about the earlier

restrictions on the hours of the exercise yard and about the

replacing of the chairs, although both incidents had occurred

months before.

The Gulag article appeared in the June 19, 1988 edition of

The Chronicle and was received at the prison the same day. The

article contained express statements about murders, assaults, and

possible violence or rioting. The staff then noticed more clustering

of groups of prisoners. The associate warden and a visitor were

intimidated by a prisoner about Martin several days later, and the

associate Warden received a threat. One of the staff members was

told by his prison crew that there was going to be trouble. The

staff member wrote a memorandum to his superiors with that

information. There is some question whether these events and the

prisoners’ statements were motivated by the article or by Martin's

being placed in administrative segregation. But in either event,

there were indications of a security problem.

| Reporting for a newspaper can also focus attention on

individual prisoners in a manner which might lead to violence or

unrest. Individual prisoners have their own separate interests

within a prison. Some desire anonymity, and some form factions

or gangs for various purposes. Most prisoners fear, or at least

dislike, change in their routine or privileges. Most inmates fear a

riot or violence, since it an result in either injury to them, or at

least greater restrictions by the prison administration. Most

prisoners do not wish to be identified or “pushed” by reporters. On

the other hand, some prisoners are against whatever occurs and

look for reasons for discord. There are therefore dangers, to he

prisoner-reporter as well as to the prison population generally,

Appendix-16

because of the possibility of violence, retaliation of prevention of

disclosure.

Newspaper articles from within a prison can have an adverse

impact on the prison staff. The staff may fear that everything they

say will be reported by prisoner-reporters in the public media.

They have duties of private counseling with prisoners which could

be undermined by public disclosure of their confidential

communications. The staff could also lose control over some of

the prison population, who might act more in response to public

recognition than to the requirements of the staff. Writers could

become alternatives to the staff. That is, a writer, or other persons

attempting to manipulate a writer, may attempt to produce the

results that one group of inmates wants through public pressure.

There was testimony that the prison staff was upset as a result of

the article. One staff member did not want to even talk to Martin

because of concern that his name or his statements could end up in

a newspaper.

Permitting a prisoner to write regularly for a newspaper, and

to be paid by the paper, also creates loyalties to the paper rather

than to the prison authorities. While obliged to follow the orders

of the prison staff, the writer-prisoner might instead be encouraged

to do things which create "news" or serve the interests of a good

story, which could push prisoners and staff into positions or

factions that might be dangerous.

The regulations also serve a legitimate desire not to give

undue prominence to a particular prisoner within the prison

population. This is known as the "big wheel" problem. One of the

basic principles of prison administration is the egalitarian treatment

of all prisoners. Having a “big wheel" within the prison population

undermines that principle. The press often concentrates on a small

number of inmates, who as result become virtual public figures

within the prison society and gain a disproportionate degree of

Appendix-17

notonety and influence among their fellow inmates. The “big

wheel" problem as been recognized by the Supreme Court.

[A]s a result those inmates who are conspicuously

publicized because of their repeated contacts with the

press tend to become the source of substantial

disciplinary problems that can engulf a large portion of

the population at a prison.

Saxbe v. Washington Post Co., 417 U.S. 843, 848-49 (1973); see

also Pell, 417 U.S. at 831-32. On the basis of this concern, the

Supreme Court upheld outright prohibition of face-to-face

interviews with individual prisoners in Pell and Saxbe. A prisoner

writing with a byline, acting as a reporter, getting compensation, or

running a business similarly poses problems of disproportionate

notoriety and influence. Martin specifically testified that he wanted

bylines. He valued the same recognition, and felt that it would be

helpful to him to sell his other written work. He also stated that

he wanted he public to take action about certain matters within a

prison. The regulation against conducting a business within the

prison also reduces the dangers posed by wealthy inmates, who

might use their wealth (maintained either outside or inside the

prison) for purposes of power and control.

The public's expectations about prisons and prisoners’

activities are also relevant. The public reasonably expects that

confinement in a prison will temporarily end the prisoner's outside

activities. And legislation such as the "Son of Sam” statutes

indicate that neither the public nor legislatures want prisoners to

benefit financially from their criminal activities or from their

detention in prison.

Even plaintiffs’ experts testified that some of the stated

security concerns were valid and were rationally promoted by the

regulations at issue here. One expert agreed that having a full-time

reporter in a prison would be contrary of prison security. He also

Appendix-18

agreed that if an article does inflame conditions within a prison, it

is contrary to valid security interests and the prison authorities can

stop it. He stated further that a genuine security problem can

override the prisoners’ rights to send information in and out of the

prison. Two experts testified that the prohibitions against

newspaper reporting and conducting a business furthered a

legitimate penological concern, not having prisoners doing things

that are not supervised by the prison. They also testified that some

writings can and should be prevented, such as those inducing riot,

escape, violence, or even libelous attacks on the warden or the

prison administration. They also testified that the prohibition

against engaging in a business promotes two legitimate penological

objectives, the staff's right to control the prison population and the

public's concept of what activities confinement in a prison should

limit.

Have the writings of prisoners actually resulted in the

dangers contemplated by the regulations? The experts differed.

There was evidence that at least some of those dangers did result

from the Gulag article, as discussed above. Are the potential

dangers offcet by the benefits of more public awareness of prisons?

These are questions which are not within the power of this court to

decide. They are for the Bureau of Prisons to decide. As long as

the regulations rationally and reasonably promote the objective of

prison security, defendants are not obligated to show an actual

danger to prison order and security. As stated by the Supreme

Court:

The informed discretion of prison officials that there

is a potential danger may be sufficient even though this

showing might be “unimpressive if . . . submitted as

justification for governmental restriction of personal

communication among members of the general public."

Jones, 433 U.S. at 133 n. 9 (quoting Pell, 417 U.S. at 825).

Appendix-19

2) Do alternative means of exercising constitutional rights

remain open to prison inmates?

If other avenues remain available for the exercise of right,

“courts should be particularly conscious of the 'measure of judicial

deference owed to correctional officials . . in gauging the validity

of the regulation." Turner, 482 U.S. at 90 (quoting Pell, 417 U.S.

at 827).

These regulations are part of a larger body of regulations that

recognize prisoners’ first amendment rights and provide for contact

between prisoners and the media. The regulations here at issue are

limited exceptions to the broad grants to prisoners of means for

exercising their nghts of expression. Prisoners retain the privilege

of correspondence to and from news media representatives; Section

540.20(a) (1988). The media has access to interviews with

prisoners, § 540.63. And prisoners have broad rights to

communicate with members of the general public; see §§ 540.10-

540.25 correspondence); §§ 540.40-540.52 (visitation).

3) What would be the impact on the guards, on other

inmates, and on the allocation of prison resources if the claimed

rights were accommodated?

If the alleged right to publish newspaper articles an be

exercised only at the cost of significantly less liberty and safety for

others within the prison, staff and prisoners alike, courts should

defer to the informed discretion of correctional officials. Turner,

482 US. at 90; Abbott, 109 S.Ct. at 1884. The concern to be

evaluated is the "ripple effect" that the exercise of a privilege can

cause within the prison. Id.

Martin wrote in the Gulag article that some prisoners

believed that a riot loomed, and some witnesses testified that this

produced effects within the prison. There was agitation within the

inmate population, security adjustments had to be made, and

additional staff time had to be spent.

Appendix-20

Where exercise of a right requires this kind of a tradeoff,

we think that the choice made by corrections officials -

which is, after all, a judgment “peculiarly within [their]

province and professional expertise," Pell v. Procunier, 417

U.S., at 827 - should not be lightly set aside by the courts.

Turner, 482 U.S. at 92-93.

4) Were there ready alternatives?

The absence of ready alternatives is evidence of the

reasonableness of regulations. Turner, 482 U.S. at 90. Conversely,

the presence of obvious and easy alternatives for achieving the

penological objectives is evidence that the regulations are not

reasonable but are an “exaggerated response” to prison concerns.

Id. However, prison officials do not have the burden of

demonstrating that a regulation is the least restrictive alternative."

Id. See also, Abbott, 109 S.Ct. at 1883-1884. Even the existence

of less restrictive means for achieving security objectives is not

proof that the response is exaggerated. Block v. Rutherford, 468

U.S. 576, 581 (1983).

Plaintiffs argue that there are alternatives to the prohibitions

imposed by these regulations. Plaintiffs contend for: censoring the

newspapers when they reach the prison; controlling the time, place,

and manner of the distribution of articles within the prison; or pre-

publication notice to prison officials.

The Bureau of Prisons has the night to monitor incoming

publications for their impact on prison security. See §§ 540.70 and

540.71, Abbott, 109 S.Ct. at 1877. However, that alternative would

require prison officials to read virtually every publication coming

into the prison in order to determine if it contained one article

dangerous to security. In Abbott, the Supreme Court upheld a

regulation which permitted the warden to prevent inmates from

receiving entire publications if he determined that they contained

any material detrimental to security. See Abbott, 109 S.Ct at 1877,

Appendix-21

n.5. The Court rejected the argument that tearing out the offending

sections would be an easy alternative. Id. at 1884. Similarly in

Tumer, the Supreme Court found that requiring prison officials to

monitor inmate correspondence, in lieu of a total ban on inmate-to-

inmate correspondence, would impose more than a de minimis

burden on the prison system. Turner, 482 U.S. at 93. Requiring

individual monitoring of daily newspapers would be an extensive

burden, and would create an even greater danger to society --- the

censorship of the content of daily newspapers. While alternatives

to the prohibitions of these regulations might exist, the court finds

that the burdens of using those alternatives would be substantial.

This court concludes that the regulations are valid under all

four parts of the Tumer test. They are rationally related to the

legitimate penological objective of prison security.

IX.

OVERBREADTH

Plaintiffs also attack the regulations on grounds of their

being overly broad. The argument is that they are broader than

necessary to serve even the legitimate objective of prison security,

and that they sweep within their prohibitions other constitutionally

protected free speech.

If an overbreadth analysis is used, a regulation is void if it

“does not aim specifically at evils within the allowable area of

[government] control, but ... sweeps within its ambit other activities

that in ordinary circumstances constitute an exercise" of protected

nights of expression. Thomhill v. Alabama, 310 U.S. 88, 97

(1940].

However, this court does not believe that such an

overbreadth analysis is required in a case involving a prisoner's

writings. The United States Supreme Court has now considered

and discussed the principal rights of prisoners that are protected by

the first amendment: the rights of association and union

Appendix-22

membership, in Jones v. North Carolina, 433 U.S. 119 (1976); the

freedom of written expression, in Turner v. Safely, 482 U.S. 78

(1987); the right to receive information and publications, in

Thornburgh v. Abbott, 109 S.Ct. 1874 (1989); and the free exercise

of religion, in O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

In each of those cases, prisoners challenged prison regulations and

the Supreme Court applied a rational relationship test, without

engaging in an analysis of the possible overbreadth of the

regulations. Specifically, the most recent opinions in Turner,

O'Lone, and Abbott demonstrate that when an attack on regulations

is made by a prisoner, the four-part Turner test is the analytic

framework to be used. A separate analysis of possible overbreadth

is not required.

VAGUENESS

Plaintiffs also attack the language of the regulations as being

unconstitutionally vague. Of particular concern are the meanings

of the words “business,” "reporter," and “publishing under a

byline."

The testimony indicated that some of the terminology used

in the writing and publishing of newspapers is not precise in the

industry, and that the terminology can and has overlapped. The

lack of precision includes the words used to express the type of

writings; ¢.g., items, news, opinion-editorial, letters to the editor,

features, first person commentary, and articles. There is also

imprecise usage of he words describing the persons who do the

writing; ¢.g., reporter, stringer, correspondent, byline, identification

line, and free-lance. All of these terms have some imprecision in

definition, some overlaps, and some changes in usage over the

years. But such variations in the use of words do not rise to the

level of unconstitutional ambiguity.

Appendix-23

It is easy to look at a regulation (or a statute or a contract),

to see some word that doesn't expressly fit the particular facts, to

then claim that is an “ambiguity,” and to then argue that the

ambiguity must be unconstitutional. But such a syllogism ignores

the fact that constitutional rights are rights and not just exercises

in semantics. Not every difficulty in using language should rise to

the level of an ambiguity which is unconstitutional. All writing is

subject to various meanings of words depending upon their context.

A thesaurus is as important a tool in language as a dictionary. And

there are few, if any, writers who can use words in any written

expression without some ambiguity, or at least some necessity for

the application of the words to the facts. The terms here, whether

describing the writing or the writer, are not ones of precise

definition or consistent usage even in the publishing industry. So

the regulations can only be expected to use the words in their

common sense meaning and to express their general intent.

The proper analysis is to look for: the basic rights involved,

what conduct the regulations intend to permit or prohibit, and

whether the words give fair notice to the reader of the conduct

prohibited. The refinement of more precise distinctions must be

left to semanticists. Here, the right is free speech expression,

unless the exercise of that right interferes with the security of the

prison. The regulations obviously intend to permit and to prohibit

free speech within that spectrum. The regulations certainly give

fair notice to prisoners that they should not write for compensation,

work for newspapers, publish under bylines, or conduct businesses.

Plaintiffs have not shown an ambiguity or vagueness which rises

to the level of a deprivation of constitutional rights.

XI.

CONSTITUTIONALITY AS APPLIED

Plaintiffs’ attacks on the regulations are not just in the

regulations themselves. Plaintiffs also contend that the regulations

Appendix-24

are unconstitutional as they were applied to them. This argument

is made under the due process and equal protection clauses of the

constitution. The line between an attack on regulations for

unconstitutionality on their face, versus unconstitutionality as

applied, is not always clear. When the standard is, as it is here,

that a regulation is to be upheld if it is reasonably related to a

legitimate penological objective, the regulation itself and the

application of that regulation become interwoven.

The question of whether a regulation was constitutionally

applied to an individual is judged according to equal protection

standards. Wayte v. United States, 470 U.S. 598, 608 (1985).

Plaintiffs make several claims in that regard. (1) They point to

other activities in which prisoners are allowed to engage, and from

which they make some compensation. (2) They point to other

prisoners who have written for compensation. (3) They argue that

some prison officials knew that Martin was writing for

compensation, but took no action against him until the Gulag

article. (4) These claims also involve plaintiffs’ contention that

defendants’ stated reason for applying these regulations was simply

a pretext for punitive action against Martin and The Chronicle.

(These contentions will be examined in this and the next sections.

Federal prisoners are allowed to engage in some activities in

prison and to make some compensation from those activities. They

include: hobby craft, where prisoners can make and sell their art

work and handicraft; work for Unicor Industries, a prison-

supervised manufacturing company; and other types of writing for

publication, including fiction, poetry, books and scripts. However,

the similarities between those permitted activities and Martin's

prohibited activities lead to unconstitutional distinctions.

In order for there to be an unconstitutional denial of due

process or equal protection, there must be first some legally

Appendix-25

recognized right or liberty interest that is protected. Meachum vy.

Fano, 427 U.S. 215, 223-24 (1976). The United States Supreme

Court has specifically held that inmate activities and rehabilitation

programs are delegated by congress to the "full discretion” of the

Bureau of Prisons, and that they do not create a “legitimate

statutory or constitutional entitlement sufficient to invoke due

process.” Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976). The

Ninth Circuit has agreed; Rizzo v. Duncan, 778 F.2d 527, 531 (9th

Cir. 1985). As stated by another circuit in Sellers v. Ciccone, 530

F.2d 199, 201 (8th Cir. 1976), “courts will not, as a general rule,

audit the exercise of that discretionary power."

A prisoner can make an equal protection claim against prison

officials only if the treatment was "“invidiously dissimilar to that

received by other inmates." Peck v. Hoff, 660 F.2d 371, 373 (8th

Cir. 1981); Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987); See

also Moody v. Daggett, supra. Several cases have recognized that

the prohibitions against prisoners receiving compensation or

running a business in prison are constitutional limitations.

Procunier v. Martinez, 416 U.S. at 414 n. 14; Johnson v. Avery,

393 U.S. 483, 490 (1969); Garland v. Polley, 594 F.2d 1220 (8th

Cir. 1979); Valentine v. Gray, 410 F. Supp. 1394, 1396 (S.D. Ohio

1975). The reason is that such limitations are part of the

restrictions of activities that are generally incident to lawful

incarceration; Price v. Johnston, 334 U.S. 266, 285 (1948). A

decision of this circuit is particularly appropriate here; Stroud v.

Swop, 187 F.2d 850, 851 (9th Cir. 951), cert. denied, 342 U'S.

829 (1951). The Ninth Circuit there held that an inmate had no

right to secure publication of a book he wrote, or to engage in

general correspondence with outsiders to promote that business.

The above authorities support the conclusion that Martin has

no right to engage in writing for compensation. It is a privilege,

not a constitutional right, and one that the Bureau of Prisons may

Appendix-26

regulate, even on a selective basis if the objective of the regulation

is legitimate. The legitimate objective in this case was prison

security, and the regulation was applied reasonably. Martin's

writing did invoke concerns for prison security at Lompoc.

There is a valid distinction between writing newspaper

articles and other types of writing. The immediacy of newspaper

information, and its recirculation into the prison, are key

differences which raise valid concerns about security. Newspaper

articles are therefore distinguishable from other types of prisoner

activities which do not pose security problems.

The same points and authorities answer plaintiffs’ argument

that other prisoners within the federal prison system have written

for compensation.

There was extensive evidence, primarily by way of

deposition, that other federal prisoners have written for publication

and have successfully marketed their writings. The evidence

disclosed perhaps two instances of prisoners who wrote under a

byline for a newspaper, although it was questionable whether they

had acted as a reporter and had received compensation. It was also

uncertain whether the Bureau of Prisons took any disciplinary

action against them, but the court will assume that the Bureau did

not.

This claim of disparate treatment led the parties into

extensive discovery and arguments about each instance of

successful prison writing, including numerous justifications asserted

by defendants. But this court does not believe that a detailed

analysis of that evidence or those arguments is necessary. As

stated, engaging in writing activities is not a constitutionally

protected right, either for purposes of due process or equal

protection. Such activities are delegated by Congress to the

discretion of the Bureau of Prisons. And the line which defendants

Appendix-27

have drawn here --- i.¢., writing which effects prison security --- is

reasonably related to a legitimate penological objective.

As stated by the U.S. Supreme Court, "[t]here-is nothing in

the constitution which requires prison officials to treat all inmate

groups alike where differentiation is necessary to avoid an

imminent threat of institutional disruption or violence." Jones, 433

U.S. at 136. Fully consistent treatment of a large group of

prisoners, with varying factual circumstances, is virtually

impossible. Even one of plaintiffs’ experts testified that not all

inmates can be given privileges which are fully equal. And

variations in treatment do not all rise to the level of constitutional

violations.

Numerous employees at Lompoc prison did know that

Martin was writing for The Chronicle before the Gulag article

appeared, and one or two employees of the Bureau's regional office

also knew. It is less clear whether they knew the extent or

regularity of Martin's writings, and whether they new that he was

being compensated. The warden and other administrative staff at

Lompoc prison had no knowledge of Martin's prior writings before

Gulag was published.

No one took any action concerning Martin's writings before

Gulag. Indeed, Martin's articles were cited as a actor in his favor

during his parole hearings before the United States Parole

Commission. Martin argues that because no action was taken

before the publication of Gulag, enforcing the regulations after

Gulag, an article critical of prison authorities, was an

unconstitutional deprivation of his due process and equal protection

rights.

For the reasons stated, this court doubts that the asserted

right is a right at all, rather than a privilege which the Bureau of

Prisons is free to administer for a legitimate penological objective.

Appendix-28

Ee ae ene

But even if a right were involved, the decision whether to enforce

every breach of a regulation is a discretion vested in the Bureau of

Prisons. 18 U.S.C. § 4001, § 4081; regulations § 541.10(b)(2), §

541.14, § 541.23(a) and (d); Sellers y. Ciccone, 530 F.2d 199, 202

(8th Cir. 1976). Not all violations of prison regulations are

prosecuted. Rather, there is an exercise of proper discretion by

prison staff in deciding what to prosecute.

One Bureau official testified that he first saw an article by

Martin in late 1986, and he believed then that it violated the

regulations. He was concerned, but after consulting with the

Bureau's attorney and with the then warden, he had no reason to

believe that the article raised any concern for security and decided

not to take any action. He later saw two other articles which were

critical of prison authority; but after discussions, he again decided

not to do anything because, although critical, they posed no

security problems. The Bureau of Prisons did act after Gulag

because of concerns for security created by that article. Gulag

contained statements about violence and rioting. And Martin

testified that the thought there was a riot coming, that there as a

potential for violence, and that the article might influence the

public.

The fact that defendants did not respond to Martin's earlier

articles, which they believed did not create security concerns, but

did act after Gulag, which did give rise to security concerns, is not

so unreasonable or arbitrary as to rise to the level of a

constitutional violation. To succeed on a claim of selective

enforcement, plaintiffs must show that the enforcement of the

regulations was “motivated by a discriminatory purpose.” Wayte,

470 US. at 697. The court finds that the enforcement at issue here

was for the purpose of the security of the prison. The regulations

were not applied as a pretext for punitive action against Martin or

Appendix-29

The Chronicle, but in furtherance of a genuine penological concern

for security.

XII.

THE SEGREGATION AND TRANSFER OF MARTIN

Martin also challenges the acts of defendants after

the Gulag article appeared. He was placed in administrative

detention for a few days, was then returned to the general prison

population, and was then abruptly transferred to another federal

prison. Martin attacks those acts on grounds of alleged violations

of due process and equal protection.

This court finds from the evidence that defendants acted

because of a genuine concern for prison security and for no other

reason. The necessity for some action was the result of events and

conditions within the prison after Gulag was published. Defendants

conducted an investigation, engaged in deliberative discussions, and

conferred with the general counsel of the Bureau of Prisons.

Whether their concerns about security were or were not accurate in

retrospect is not he issue here. The point is that defendants acted

from a genuine concern about security. That finding is supported

by events and conditions in the prison which have already been

discussed, and by the following facts.

Many witnesses testified to changes in the mood of he prison

population at the time of the publication of Gulag, Martin's

administrative segregation, and then his release into the general

population. The changes in mood were variously, and perhaps

inconsistently, described. But the testimony was consistent that

there were changes, and that changes are an indicator of potential

difficulties within the prison.

It is a practice of prison officials to make themselves

available to the inmates at the prisoners’ noon meal. This is an

opportunity for prisoners to approach the warden and his staff and

to express complaints, suggestions, or requests. Ordinarily,

Appendix-30

numerous inmates approach the warden and his staff each day.

However, on June 20, the day after Gulag appeared, no inmates

approached the warden or the staff. The silent treatment continued

on June 21. The associate warden was later approached by two

inmates, who told him that the article was not representative of the

views of all of the inmates. While that information may have been

consoling, it nevertheless raised the question of possible factions of

inmates.

When the warden received a copy of the Gulag article, he

became concerned about its effects on the prison, and called a

meeting of his staff. Many of the staff had not seen he article

before meeting with the warden. The staff discussed their concerns

about possible violence against prison authorities, and also their

concerns about possible prisoner retaliation against Martin. The

article reported an unnamed inmate as saying that the warden was

trying to start a riot and that the inmates might as well give him a

riot and get it over with. The staff's concern was not only about

a riot, but also that inmates might take some action against Martin

for quoting them, to prevent him from identifying them to the staff,

or for perhaps for creating a violent situation where none had

existed. The chief of prison security was particularly worried about

a riot and about the safety of Martin. These concerns were

expressed and discussed against a background of riots that had

recently occurred at two other federal prisons.

The warden and his staff decided that it was necessary to put

Martin into administrative segregation, for his own protection,

while an investigation of possible violence, either generally or

against Martin personally, could be made. One of the experts

testified that such administrative detention was proper. The

standard, and indeed the required, operating procedure is that

protective action be taken while an investigation is conducted.

Appendix-31

An investigation was promptly conducted. A few days later,

when the investigation indicated that there was prohahly xo

personal danger to Martin, he was released from administrative

detention and returned to the general prison population. However,

the prisoner population appeared to remain polarized even aiter

Martin was released from administrative segregation.

The investigation continued. The wardeén'‘left to attend a

conference of wardens in another state, but conferred with the

Lompoc staff by telephone daily. They concluded that tensions at

the prison were becoming precarious, and that the inmates were

choosing sides over the issue of Martin and his writing. The

investigation included tape-recorded telephone conversations

between Martin and The Chronicle editor, in which Martin and the

editor discussed that Martin would continue to write about matters

at the prison. The recordings disclosed that Martin intended to

write an article about the high security unit within the prison and

about the inmates here. Because of the nature of that unit, and the

special prisoners who are housed there, disclosure of their identities

or the reasons for their segregation could result in potential

violence. The tape recorded conversations between Martin and The

Chronicle indicated that further articles would be written “to keep

pressure and heat on" the warden.

As a result of the investigation and the tense conditions at

the prison, the warden and his staff concluded that Martin should

be transferred. A warden does not have the authority to order the

transfer of a prisoner without the approval of the regional director

of the Bureau. The warden therefore contacted the regional

director, who was also attending the warden's conference. They

also sought the opinion of the general counsel of the Bureau of

Prisons. The situation was discussed in detail, and the general

counsel's opinions were solicited. As a result of the consultations

Appendix-32

and opinions, the regional director authorized Martin's transfer from

Lompoc.

Martin was transferred on June 30. The method of removing

Martin from Lompoc and transferring him to another prison was

more hasty than the usual procedures for the transfer of a prisoner.

However, the haste was justified by genuine concerns for security.

The transfer of Martin had the actual result of gradually defusing

the tensions within the prison.

Martin alleges a violation of his due process rights because

he was transferred to another prison without the use of the normal

procedures. While his transfer was done in haste, and without a

hearing, no procedural due process rights were violated. The

Bureau of Prisons was within its authority to determine that the

interests of the security of the prison required Martin's prompt

transfer. The transfer was administrative and not punitive in

nature; that is, no punishments were otherwise imposed on Martin,

such as deprivations of his privileges or a delay of his release date.

One of plaintiffs’ experts agreed that transfer is an option to avoid

problems. He said that a warden should investigate, weigh the

information, and consider the negative implications. Another

expert testified that a warden can taken action to protect a prisoner

or to prevent him from becoming the cause of a disturbance, and

such action can properly include administrative segregation or

transfer. The warden, the prison staff, and the Bureau of Prisons

properly did so in his case.

Plaintiffs argue that there is no real difference between

administrative action and disciplinary action. That is, both resulted

in Martin's being in stricter detention and then being transferred,

and both should invoke due process protection. But the evidence

and the law demonstrate that there is a genuine difference between

administrative action and disciplinary action, even though some of

the results to the prisoner may be the same. The differences are

Appendix-33

real and are not just words. The regulations themselves -draw

distinctions, both in substance and in procedure, between

segregation for the purpose of discipline versus segregation for the

purpose of administrative detention and protection. See Part 541,

and particularly §§ 541.22 and 541.23. Administrative detention

or transfer can be used for protection, for investigation, or for

reclassification, and they involve no penalty or punishment such as

the ultimate loss of privileges or a delay in the date of the

prisoner's release from prison. Disciplinary action, on the other

hand, as a sanction which can result in a loss of privileges, and in

report to the Parole Commission which could affect the prisoner's

ultimate release date. Disciplinary action can therefore only be

taken after a hearing.

Martin also argues that his substantive due process rights

were violated, because under a table of prohibited acts and their

punishments, set forth in Table 3 of § 541.13, the penalty for

conducting a business is limited to the prisoner being restricted to

his quarters. However, as stated, the actions against Martin were

not disciplinary. And Martin does not have a constitutionally

protected liberty interest in the punishment stated in the table

which cannot be offset by valid concerns for prison security.

Section 541.13, Table 3, Code 399 authorizes segregation and

transfer for conduct which interferes with security. See also,

§501.1 quoted above. The case authorities suggest that a prisoner

can be transferred, even for engaging in permitted first amendment

activity, if he Bureau of Prisons has legitimate security concerns.

Baraldini v. Thornburgh, 884 F.2d 615, 620-21 (D.C. Cir. 989).

The method of analysis of a prisoner's claimed rights is again the

Turner v. Safely standards. See also Shango v. Jurich, 681 F.2d

1091 (7th Cir. 1982); Olim v. Wakinekona, 461 U.S. 238 (1983);

and Montanye v, Haymes, 427 U.S. 236 (1976).

Appendix-34

This court finds and concludes that Martin was transferred,

under the administrative procedures of the Bureau of Prisons, for

valid reasons of prison security, and was not transferred as a

pretext or for purposes of retaliation.

XII.

THE CHRONICLE

This opinion has used the term "plaintiffs" without such

differentiation between Martin and The Chronicle.’ The court must

now address the question of whether the fact that a newspaper is

a party requires a stricter constitutional analysis.

The Chronicle argues that it has different constitutional

rights, which require different analysis, because of the nature of its

functions. It decides what to publish. It decides whether an item

will be printed as news, an article, an editorial opinion, a special

feature, or the like. It decides whether to give the writer a byline.

It writes the headlines, does the art work, and selects the pulluotes.

These are different functions from those of the writer, which The

Chronicle calls “editorial discretion." These matters are indeed

within its discretion. But the use of the label "editorial discretion"

does not necessarily invoke some different level of constitutional

rights. The Court must still examine whether the regulations really

impact newspaper's discretion.

The regulations do not inhibit the content of what is printed

by The Chronicle. They do not authorize the Bureau of Prisons to

tell The Chronicle what can or cannot be printed, and the Bureau

has not attempted to exercise such a power. The Chronicle is free

to publish whatever it wants. And as already noted, there are

extensive regulations which assure newspapers access to prisoners

and to prison information. The regulations are addressed to the

‘The claim of Nancy Hoffman, a reader of Martin's articles in The Chronicle,

was previously dismissed.

Appendix-35

me |

prisoners, and not to the news media. And restraints on an author

do not automatically constitute interference with the editorial

discretion of publication; see Pell v. Procunier, infra.

The Chronicle argues for a stricter standard of judicial

review, and hence a higher level of constitutional rights, by

reference to Miami Herald Publishing Co. v. Tomnillo, 418 U.S. 241

(1973). Specifically, the Supreme Court said in that case,

The choice of material to go into a newspaper, and

the decisions made as to limitations on the size and

content of the paper, and treatment of public issues

and public officials - whether fair or unfair -

constitute the exercise of editorial control and

judgment. It has yet to be demonstrated how

government regulation of this crucial process can be

exercised consistent with First Amendment guarantees

of a free press as they have evolved to this time.

Id. at 258.

While that quotation is unimpeachable first amendment law,

it is not the issue in the present case. The legislation at issue in

Miami Herald specifically dealt with what the newspaper was

required to print. The regulations at issue here do not. The

Chronicle is free to print or to reject whatever it wants of Martin's

writings. The restraints which the regulations place on Martin as

a prisoner do not prohibit The Chronicle from publishing anything

that he sends to them.

The U. S. Supreme Court has upheld restrictions on the

access of the press to prisoners; Pell y. Procunier, 417 U.S. 817

(1973). And in Saxbe v. Washington Post, 417 U.S. 843 (1973),

the Court held that prohibiting interviews between newspapers and

prisoners did not abridge freedom of the press.

The Chronicle argues that any restrictions on Martin, its

source of information, interfere with its right to gather the news.

Appendix-36

The Supreme Court did recognize in Pell that the function of news

gathering may implicate first amendment rights. However, the

court said that

The Constitution does not, however, require government

to accord the press special access to information not

shared by the public generally. It is one thing to say that

a journalist is free to seek out sources of information not

available to members of the general public .... It is quite

another thing to suggest that the Constitution imposes

upon government the affirmative duty to make available

to journalists sources of information not available to

members of the public generally. That proposition finds

no support in the words of the Constitution or in any

decision of this Court.

417 US. at 834-35 (footnote and citations omitted).

Under its present regulations, the Bureau of Prisons gives the

press greater access to information than the general public.

Prisoners can send writings to the news media as "special mail,"

which prison authorities may not read. The regulations also afford

the news media the opportunity for personal interviews with

prisoners. The regulations do not unduly limit The Chronicle in its

sources of information. The regulations do not prevent The

Chronicle from reporting on prisons or prisoners.

The restrictions which the regulations place on Martin do not

deprive The Chronicle of any higher rights of constitutional

dimension. The rights of The Chronicle in this case are still

governed by the Turner v. Safely standards. This was made clear

by the U. S. Supreme Court in Abbott:

We do not think it is sufficient to focus ... on the

identity of the individuals whose rights allegedly have

been infringed. Although the court took special note

in [Martinez] of the fact that the nghts of non-

Appendix-37

prisoners were at issue, and stated a rule in [Turner]

for circumstances in which ‘a prison regulation

impinges on inmates constitutional rights,’ any attempt

to forge separate standards for cases implicating the

rights of outsiders is out of step with the intervening

decisions in [Pell, Jones, and Bell]. These three cases,

on which the court expressly relied in Turner when it

announced the reasonableness standard for ‘inmates’

constitutional nights’ cases, all involve regulations that

affected rights of prisoners and outsiders.

109 S.Ct. at 1879, n.9.

XIV.

CONCLUSIONS

For the reasons stated, this court finds and concludes that the

penological interest of prison security was invoked by Martin

writing and The Chronicle publishing the Gulag article. The fact

that there was a genuine concern for security was established by a

preponderance of the evidence. The regulations at issue bear a

reasonable relationship to that bona fide penological interest. The

application of the regulations, and the segregation and transfer of

Martin, were not arbitrary or capricious, and were not for purposes

of retaliation. Prison security was not a pretext for punishing he

content of Martin's writings.

Specifically with respect to the causes of actions alleged in

the first amended complaint, the court finds and concludes that:

plaintiffs’ first anendment rights of freedom of speech and freedom

of the press were not violated; Martin's due process rights under

the fifth and sixth amendment were not violated; plaintiffs’ rights

of equal protection under the fifth and fourteenth amendments were

not violated; defendants’ conduct was not arbitrary or capricious in

violation of the Administrative Procedure Act, 5 U.S.C. § 702

Appendix-38

(1982); and defendants’ actions were objectively reasonable, and

were not malicious or oppressive.°

In conclusion, the court hopes that the Bureau of Prisons will

not misinterpret this result. It is not carte blanche for the Bureau

to restrain opinions which it does not like. In a civilized society

governed by the rule of law, voices of dissent cannot and should

not be suppressed. History has been punctuated by writers who

have emerged from prison cells to become spokesmen for

humanity. As the United States Supreme Court has held, and as

the Bureau of Prisons itself recognizes, prisoners do have first

amendment rights. When those rights conflict with a genuine

concer for prison security, as in this case, restraint can be

imposed. But the word "security" cannot be just a label invoked

to shield all actions from scrutiny. While the decisions of the

Supreme Court and this court accede to the Bureau's discretion

when properly exercised, that is not a totally "hands-off" principle.

As the length of this case -- and indeed this opinion --

demonstrates, federal courts will scrutinize the validity of prisoners’

claims.

‘The first amended complaint (paragraph twenty-nine), also alleges a cause of

action for the search and seizure of Martin's personal possessions, as unreasonable

under the fourth amendment. Little if any testimony was introduced at trial

pertaining to that issue. The court believes that the genesis of that allegation was

a taking of Martin's writings and writing materials by defendants when he was

transferred, which this court later ordered to be retumed to him. Martin as

subsequently continued to write. The court concludes from the evidence, or lack

of evidence, that Martin has not established any violation of his fourth amendment

nghts which entitle him to further redress by this court on that cause of action.

Appendix-39

IT IS THEREFORE ORDERED that the preliminary

injunction is dissolved and that judgment be entered for defendants

and against plaintiffs.

Dated: June 26, 1990.

[SIGNED]

CHARLES A. LEGGE

UNITED STATES DISTRICT JUDGE

Appendix-40

Ill. Order on Rehearing (Rule 14.1(k)(i11))

[The following was filed in the Court of Appeals on

September 21, 1992.]

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE CHRONICLE PUBLISHING CO.,) No. 90-16103

) DC No. CV-88-

Plaintiff-Appellant, ) 2570-CAL

)

v. )

)

R.H. RISON, etc., et al., )

)

Defendants-Appellees. )

)

DANNIE MARTIN, ) No. 90-16122

) DC No. CV-88-

Plaintiff-Appellant, ) 2570-CAL

)

v. )

) ORDER

R.H. RISON, etc., et al., )

)

Defendants-Appellees. )

oon

Appendix-41

Before. D W. NELSON, HALL and FERNANDEZ, Circuit Judges.

Judges Hall and Fernandez voted to deny the petition for

rehearing. Judge D.W. Nelson voted to grant the petition for

rehearing. The panel voted unanimously to reject the suggestion

for rehearing en banc

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. (Fed.R. App. P. 35.)

The petition for rehearing is denied and the suggestion for

rehearing en banc is rejected

Appendix-42

IV. Pertinent Text of Constitutional Provisions and Regulations

Involved (Rule 14.1(f))

A. U.S. Const. art. III

Section |. The judicial Power of the United States, shall be

vested in one supreme Court, and in such inferior Courts as the

Congress may from time to time ordain and establish. . . .

Section 2. [1] The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the Laws of the

United States, and Treaties made, or which shall be made, under

their Authority;--to all Cases affecting Ambassadors, other public

Ministers and Consuls;--to all Cases of admiralty and maritime

Jurisdiction;--to Controversies to which the United States shall be

a Party;--to Controversies between two or more States;--between a

State and Citizens of another State;--between Citizens of different

States;--between Citizens of the same State claiming Lands under

the Grants of different States, and between a State, or the Citizens

thereof, and foreign States, Citizens or Subjects.

B. U.S. Const, amend. |

Congress shall make no law ... abridging the freedom of

speech, or of the press... .

C. U.S. Const. amend. V

... [NJor shall any person .. . be deprived of life, liberty, or

property, without due process of law... .

D. 28 C.F.R. § 540.20(b) (1992)

The inmate may not receive compensation or anything of value for

correspondence with the news media. The inmate may not act as

reporter or publish under a byline.

Appendix-43

E. 28 C.F.R. § 540.14(d) (1992)

_. . Correspondence which may be rejected by a Warden includes,

but is not limited to, correspondence which contains any of the

following:

(4) Direction of an inmate's business (See § 541.13, Prohibited

Act No. 408). An inmate, unless a pre-trial detainee, may not

direct a business while confined... .

F. 28 CFR. § 540.45 (1992)

No inmate is permitted to engage actively in a business or

profession. .. .

G. 28 CFR. § 541.13 (1992)

TABLE 3--PRCHIBITED ACTS AND DISCIPLINARY SEVERITY

SCALE

LOW MODERATE CATEGORY

[First column of table, "Code":] 408

{Second column of table, "Prohibited Acts":] Conducting a

business

[Third column of table, "Sanctions":]

B.1 Disallow ordinarily up to 12.5% (1-7 days) of good

conduct time credit available for year (to be used only where

inmate found to have committed a second violation of the same

prohibited act within 6 months); Disallow ordinarily up to 25% (1-

14 days) of good conduct time credit available for year (to be used

only where inmate found to have committed a third violation of the

same prohibited act within 6 months) (a good conduct time

sanction may not be suspended).

Appendix-44

' Make monetary restitution.

Withhold statutory good time.

Loss of privileges: commissary, movies, recreation, etc.

Change housing (quarters).

Remove from program and/or group activity.

Loss of job.

Impound inmate's personal property.

Confiscate contraband.

Restrict to quarters.

Extra duty.

Reprimand.

Warning.

VOZEr AS 20 =

Appendix-45

V. First Amended Complaint for Declaratory, Injunctive and

Monetary Relief for Violation of Constitutional Rights (Jury

Trial Demanded)

[The following was filed by petitioners in the district court

on August 17, 1988 (cover page and exhibits omitted). ]

PRELIMINARY STATEMENT

1. This suit centers on the First Amendment rights of a

federal prison inmate, Dannie Martin, one of California's largest

newspapers, The San Francisco Chronicle ("the Chronicle"), and

the Chronicle's readers, including the plaintiff Nancy Hoffman.

Mr. Martin has become a celebrated freelance writer for the

Chronicle over the past two years. On June 19, 1988, the

Chronicle published an article by Mr. Martin which was critical of

R.H. Rison, the Warden at the Lompoc, California, penitentiary

where Mr. Martin was incarcerated. Shortly thereafter, Mr. Martin

was placed in solitary confinement and later transferred to the

Metropolitan Correctional Center in San Diego, California and then

to the Federal Correctional Institution in Phoenix, Arizona. These

actions by defendants are in retaliation for Mr. Martin's exercise of

his rights to free speech, and seriously infringe upon the

Chronicle's rights to freedom of the press, and frustrate the rights

of Ms. Hoffman and other Chronicle subscribers to read

commentaries by Mr. Martin. Mr. Martin fears that he will be

subject to further retaliatory conduct for his writing, such as being

placed on the federal prison system's “merry-go-round” whereby he

will be shuffled from prison to prison to render it more difficult to

exercise his First Amendment and other rights.

JURISDICTION AND VENUE

2. This is a suit against federal officers and the United

States Bureau of Prisons. It involves questions which arise under

Appendix-46

the United States Constitution and the Administrative Procedure

Act. Jurisdiction is conferred on this Court pursuant to 28 U.S.C.

§§ 1331, 1361, 2201 & 2241, 5 U.S.C. § 702 and directly under

the Amendments to the Constitution which defendants are violating

as alleged herein. Venue is proper in this judicial district pursuant

to 28 U.S.C. § 1391(e) because defendant Jerry Williford resides

in this judicial district and the claims detailed below arose in this

judicial district.

PARTIES

3. Plaintiff Dannie Martin had been an inmate at the

Federal Penitentiary in Lompoc, California, from 1980 until June

30, 1988, when he was transferred to the Metropolitan Correctional

Center, a federal prison facility located in San Diego, California.

On July 7, 1988, Mr. Martin was transferred again to the Federal

Correctional Institution in Phoenix, Arizona, where he is current

incarcerated.

4. Plaintiff The Chronicle Publishing Company (the

"Chronicle") publishes The San Francisco Chronicle, a newspaper

with one of the largest circulations in the State of California. The

Chronicle contributes certain sections to the San Francisco Sunday

Examiner and Chronicle, including the "Sunday Punch" section.

5. Plaintiff Nancy Hoffman is a resident of this judicial

district and has read many of Mr. Martin's articles as such articles

were published from time to time in the "Sunday Punch."

6. Defendant R.H. Rison is the Warden of the Federal

Penitentiary in Lompoc, California, and is responsible for that

penitentiary's day-to-day administration. Mr. Rison is sued in both

his official and individual capacities.

7. Defendants Tom Curd and Paul Hofer are the Assistant

Warden and the Executive Assistant to the Warden, respectively,

at the Lompoc penitentiary, and assist Warden Rison in his

Appendix-47

administration of the facility. Messrs. Curd and Hofer are sued

both in their official and individual capacities.

8. Defendant Jerry Williford is the Director of the Western

Region of the Federal Bureau of Prisons and is responsible for the

daily administration of that Region. In this capacity, he supervises

the operations of the federal penitentiary at Lompoc, California.

Mr. Williford is sued in both his official and individual capacities.

9. Defendant Michael Quinlan is the Director of the Federal

Bureau of Prisons and is responsible for administering all aspects

of that Bureau, including penitentiaries such as the one at Lompoc,

California, and federal correctional institutions such as the one at

Phoenix, Arizona. Mr. Quinlan is sued in his official Capacity as

described above.

10. Defendant Federal Bureau of Prisons is an administrative

agency of the United States Government that supervises the

administration and operation of the federal prison system.

Plaintiffs seek declaratory and injunctive, but not monetary, relief

against defendant Federal Bureau of Prisons.

FACTUAL ALLEGATIONS

11. Dannie Martin has had approximately 20 articles

published in the Chronicle's "Sunday Punch" section over the last

two years. These articles have discussed a wide array of topics,

ranging from prison folklore to contemporary events, particularly

instances of injustice. Mr. Martin's writing has been nominated for

a national media award, has evoked inquiries from major national

newspapers, and has elicited extensive responses by readers as far

away as Australia and Switzerland.

12. The Sunday edition of the Chronicle has a circulation

exceeding 700,000. The "Sunday Punch" is among the two or

three most popular sections of the Sunday Chronicle. Mr. Martin

has become an extremely popular writer for the Chronicle and has

Appendix-48

developed a personal rapport with the readership. Ms. Hoffman is

one of many such readers.

13. Defendants have been aware of Mr. Martin's articles in

the Chronicle as those articles have been published from time to

time over the last two years. Indeed, at Mr. Martin's parole board

hearing last summer, Mr. Martin was informed by the parole board

that if he continued to keep up his good work in writing for the

Chronicle, then the parole board at its next hearing likely would

subtract time from his target prison release date.

14. On June 19, 1988, an article by Mr. Martin was

published in the Chronicle's "Sunday Punch." this Article

concerned what Mr. Martin perceived to be the rising tensions at

Lompoc penitentiary. This Article specifically criticized Warden

Rison. Attached hereto as Exhibit | is a true and correct copy of

the Article.

15. Two days after the Article was published Mr. Martin was

placed in solitary confinement without an opportunity to be heard.

Shortly after Mr. Martin was put in solitary confinement, defendant

Hofer indicated in the June 23, 1988, San Francisco Chronicle that

Mr. Martin had been placed in “protective custody" and that his

confinement could last up to two weeks while the prison

administration's investigation concerning Mr. Martin's safety

continued. Mr. Martin also learned that he was being held on

suspicion of encouraging a group demonstration.

16. On the moming of June 23, 1988, substantial press

attention was devoted to Mr. Martin's situation. Both the Chronicle

and the Associated Press released stories concerning Mr. Martin's

solitary confinement. During the afternoon of June 23, 1988, Mr.

Martin was released from solitary confinement and returned to the

general prison population.

17. While Mr. Martin was in solitary confinement, defendant

Rison made public statements hostile to Mr. Martin and his

Appendix-49

writings in the Chronicle. On a local radio program, defendant

Rison stated that the Lompoc penitentiary was not "big enough" for

both him and Mr. Martin. Defendant Rison also told the

Associated Press on June 23, 1988: "As long as I am not going to

be given a chance by the Chronicle to respond and the newspaper

published whatever he [Mr. Martin] writes unedited as fact, I don't

plan on leaving this fellow in this institution."

18. Notwithstanding the statements made in the preceding

paragraph, defendant Hofer, as the spokesman for the Lompoc

prison administration, stated in an interview on Friday, June 24,

1988: "From now on Dannie is free to write anything he wants."

Similarly, during the evening of June 23, 1988, after Mr. Martin

had been released from solitary confinement, defendant Rison told

Chronicle "Sunday Punch" editor Peter Sussman that his prison

administration would follow an “open-door policy” with respect to

Mr. Martin's writing. When Mr. Sussman informed defendant

Rison that he had previously received information from a Lompoc

prison official suggesting that Mr. Martin could not be paid for his

work nor could any of his writings carry his name, defendant Rison

replied that if there were such limitations they would be “ignored

by this prison administration.”

19. On Thursday, June 30, 1988, Mr. Martin was suddenly

transferred from the Lompoc penitentiary to the San Diego

Metropolitan Correctional Center. Mr. Martin was seized from a

handball court at approximately 12:45 p.m., and taken to a waiting

van. Attached hereto as Exhibit 2 is a true and correct copy of the

press release by Lompoc prison officials concerning Mr. Martin's

transfer. The press release charges that Mr. Martin had “become

a compensated byline journalist" in violation of Federal Bureau of

Prisons policy.

20. The reason given for Mr. Martin's solitary confinement

was pretextual, and actually was in retaliation for the publication

Appendix-50

of Mr. Martin's Article and past articles in the Chronicle. At the

time that Mr. Martin was placed in solitary confinement, there was

no genuine threat to his personal safety due to the Article. In fact,

the Article was praised by Mr. Martin's fellow prison inmates. At

no time had or has Mr. Martin encouraged a group demonstration

at the time he was isolated from the general prison population.

21. Mr. Martin's transfer from Lompoc similarly was

pretextual, and was designed to retaliate against the publication of

the Article and past articles in the Chronicle. Lompoc prison

officials had been aware for quite some time prior to the transfer

that Mr. Martin's articles were being published by the Chronicle.

22. Mr. Martin fears that further retaliation against him by

defendants is imminent. A common practice of defendants is to

place “uncooperative” prisoners on the “merry-go-round,” whereby

they are repeatedly transferred from prison to prison so that it will

be difficult, if not impossible, for them to exercise their

constitutional rights or even normal privileges, such as meeting

with visitors.

23. On June 30, 1988, when Mr. Martin was transferred from

Lompoc, he was not permitted to take any of his personal

belongings. Included among those belongings were extensive

writing materials, such as the text of his unfinished novel, notes for

potential stories, and books that he relied upon as writing

resources. On or approximately June 30, 1988, defendants

searched Mr. Martin's personal property and seized communications

to Mr. Martin from his attorney. In addition, when Mr. Martin's

personal property was returned under court order approximately ten

days later, certain possessions were damaged or missing.

24. Pursuit of any alleged administrative remedies in this

case would be futile, given the extreme time constraints and the

seriousness of the constitutional deprivations that plaintiffs are

currently suffering. Moreover, the administrative process at

Appendix-51

Lompoc penitentiary, Metropolitan Correctional Center in San

Diego, and Phoenix Federal Correctional Institution has been

ineffective and illusory for Mr. Martin. Indeed, Mr. Martin has

been informed by a disciplinary hearing officer that all alleged

administrative procedures relating to Mr. Martin have been

postponed pending the hearing on plaintiffs' motion for preliminary

injunction in this action.

25. Defendants’ unconstitutional conduct as alleged above is

continuing and, unless and until restrained by order of this Court,

will cause great and irreparable harm to plaintiffs. Plaintiffs have

no adequate remedy at law for the injuries that they are currently

suffering and will continue to suffer. Injunctive relief of an

extraordinary nature therefore is essential to prevent irreparable

injury in this action.

CAUSES OF ACTION

26. The above-described conduct of defendants denies

plaintiffs’ rights to freedom of speech and freedom of press, in

contravention of the First Amendment to the United States

Constitution. In particular, 28 C.F.R. § 540.2(b) is unconstitutional

on its face and as applied and is unconstitutionally vague,

overbroad and discriminatory. 28 C.F.R. § 540.14(d)(4) (Code

408, Conducting A Business) is inapplicable to Mr. Martin, and

defendants’ conduct furthermore is mere pretext for retaliation

against plaintiffs' exercise of their First Amendment rights.

27. The above-described conduct of defendants denies

plaintiff Martin due process of law and effective representation by

counsel as guaranteed by the Fifth and Sixth Amendments to the

United States Constitution.

28. The above-described conduct of defendants violates

plaintiffs’ rights to equal protection under the law, as guaranteed

under the Fifth and Fourteenth Amendments.

Appendix-52

29. The above-described conduct of defendants, including

but not necessarily limited to defendants’ search and seizure of Mr.

Martin's personal possessions as described above, violated Mr.

Martin's right against unreasonable search and seizure, as

guaranteed by the Fourth Amendment.

30. The above-described conduct of defendants, in some

instances contrary to defendants' own administrative regulations, is

arbitrary and capricious and is in violation of the Administrative

Procedure Act. (See 5 U.S.C. § 702).

31. Defendants’ constitutional violations, as alleged in

paragraphs 1-30 above, were not objectively reasonable, as

measured by reference to clearly established law. Moreover,

defendants’ conduct, which constituted the constitutional violations

alleged, was knowing, malicious and oppressive.

WHEREFORE, Plaintiffs request that this Court grant the

following declaratory, injunctive, and monetary relief.

A. A declaratory judgment which:

1. finds that the acts, policies and practices of defendants

as herein described and complained of violate the plaintiffs’ nghts

as described in paragraphs 26-30 above;

2. finds that defendants’ acts were not objectively

reasonable, as measured by reference to clearly established law.

B. A temporary restraining order, and a preliminary and

permanent injunction which:

1. prohibits the defendants, their successors, officers,

agents, employees, and all other persons acting in concert or

participation with them, from transferring Mr. Martin to another

prison facility until the completion of this case, and permitting

transfer of Mr. Martin after completion of this case, following the

remedial transfer requested by clause 9 below, only upon Mr.

Martin's consent or upon noticed motion by defendants to this

Court for good cause shown whereby defendants must affirmatively

Appendix-53

demonstrate that the proposed transfer is not in retaliation for the

exercise of Mr. Martin's constitutional or other rights;

2. prohibits the defendants, their successors, officers,

agents, employees and all other persons acting in concert or

participation with them, from depriving Mr. Martin of any rights

and privileges that other inmates at the penal institution at which

he is incarcerated are afforded;

3. prohibits the defendants, their successors, officers,

agents, employees, and all other persons acting in concert or

participation with them, from retaliating against either Mr. Martin

or the Chronicle for the writing and/or publishing of Mr. Martin's

articles in the Chronicle or any other publication, or from

retaliating against Mr. Martin, the Chronicle, and Ms. Hoffman for

having brought this suit;

4. requires the defendants, their successors, officers, agents,

employees, and all other persons acting in concert or participation

with them, to provide Mr. Martin with all of the writing materials

of which he was deprived when he was transferred from the

Lompoc penitentiary on June 30, 1988;

5. prohibits the defendants, their successors, officers,

agents, employees, and all other persons acting in concert or

participation with them from enforcing 28 C.F.R. § 540.20(b)

against Mr. Martin and the Chronicle;

6. prohibits the defendants, their successors, officers,

agents, employees, and all other persons acting in concert or

participation with them from enforcing 28 C.F.R. § 540.20(b);

7. prohibits the defendants, their successors, officers,

agents, employees, and all other persons acting in concert or

participation with them from applying the conducting business

regulation against Mr. Martin for his freelance writing;

8. requires the defendants, their successors, officers, agents,

employees, and all other persons acting in concert or participation

Appendix-54

with them, to expunge Mr. Martin's pending alleged prison

infractions;

9. prohibits the defendants, their successors, officers,

agents, employees, and all other persons acting in concert or

participating with them, from relying on any of Mr. Martin's

purported prison infractions relating to his writing for the Chronicle

or any other publication to adversely affect Mr. Martin's status

before the Parole Board or to in any way detract from the Parole

Board's stated intention to subtract time from Mr. Martin's target

release date in view of his exemplary and rehabilitative writing in

the Chronicle;

10. requires the defendants, their successors, officers, agents,

employees, and all other persons acting in concert or participation

with them, to return Mr. Martin to a federal prison in California

other than Lompoc penitentiary in order to facilitate exercise of

First Amendment rights violated by defendants’ prior transfers of

Mr. Martin.

C. Compensatory and punitive damages under the Bivens

doctrine in an amount according to proof as is just and fair for

defendants’ constitutional torts, which were carried out knowingly

and with malice and oppression;

D. Reasonable costs of suit and attorneys’ fees incurred herein

under the Equal Access To Justice Act or any other applicable

federal or state constitutional, statutory or regulatory provision, or

common-law doctrine;

E. A jury tnal. 7

Appendix-55

F. Such other and further relief as this Court deems just and

appropriate.

DATED: August _, 1988 HELLER, EHRMAN, WHITE &

MCAULIFFE

ACLU FOUNDATION OF

SOUTHERN CALIFORNIA

Jeffrey A. Leon

Attorneys for Plaintiffs

Dannie Martin and Nancy Hoffman

COOPER, WHITE & COOPER

Neil L. Shapiro

Lisa A. Zinkan

Attorneys for Plaintiff

The Chronicle Publishing Co.

Appendix-56

VI. Certificate of Parole

U.S. Department of Justice

United States Parole Commission

Chevy Chase, Maryland 20815

Certificate of Parole

Know all Men by these Presents:

It having been made to appear to the United States Parole

Commission that MARTIN, DANNY MACK, Register No. 11319-

086, a prisoner in the ECLECTIC COMMUNICATIONS, INC. is

eligible to be PAROLED, and in that said prisoner substantially

observed the rules of the institution, and in the opinion of the

Commission said prisoner's release would not depreciate the

seriousness of this offense or promote disrespect for the law, and

would not jeopardize the public welfare, it is ORDERED by the

said United States Parole Commission that said prisoner be

PAROLED on FEBRUARY 19, 1992; and that said prisoner 1s to

remain within the limits of NORTHERN/CALIFORNIA until

SEPTEMBER 9, 2013;

Given under the hands and the seal of the United States Parole

Commission this 21st day of FEBRUARY, 1992.

UNITED STATES PAROLE COMMISSION,

By [signed]

BERTHA COLE, CASE ANALYST

Initial Risk Category Poor (QO)

Appendix-57

Advisor

Probation Officer LOREN A. N. BUDDRESS, CUSPO, SAN

FRANCISCO, CALIFORNIA

I have read, or had read to me, the conditions of release printed on

the reverse of this certificate and received a copy thereof, I fully

understand them and know that if I violate any, I may be

recommitted. I also understand that the law requires the Parole

Commission to revoke my parole if I am found by the Commission

to have possessed any illegal controlled substance. I also

understand that special conditions may be added or modifications

of any condition may be made by the Parole Commission upon

notice required by law.

[signed] Dannie M. Martin 11319-086

(Name) Register number

WITNESSED [signed] James M. Schloetti [?]

U.S. Probation Officer 3-23-92

(Title) (Date)

UNITED STATES PAROLE COMMISSION

The above-named person was released on the , day of

,19___ with a total of days remaining

to be served.

(Chief Executive Officer)

Appendix-58

CONDITIONS OF RELEASE

1. You shall go directly to the district shown on the

CERTIFICATE OF RELEASE (unless released to the custody of

other authorities). Within three days after your arrival, you shall

report to your parole advisor if you have one, and the United States

Probation Officer whose name appears on this Certificate. If in

any emergency you are unable to get in touch with your parole

advisor, or your probation officer or the United States Probation

Office, you shall communicate with the United States Parole

Commission, Department of Justice, Chevy Chase, Maryland

20815

2. If you are released to the custody of other authorities, and

after your release from physical custody of such authorities, you

are unable to report to the United States Probation Officer to whom

you are assigned within three days you shall report iustead to the

nearest United States Probation Officer.

3. You shall not leave the limits fixed by this CERTIFICATE

OF RELEASE without written permission from your probation

officer.

4. You shall notify your probation officer within 2 days of any

change in your place of residence.

5. You shall make a complete and truthful written report (on a

form provided for that purpose) to your probation officer between

the first and third day of each month, and on the final day of

parole. You shall also report to your probation officer at other

times as your probation officer directs, providing complete and

truthful information.

Appendix-59

6. You shall not violate any law. Nor shall you associate with

persons engaged in criminal activity. You shall get in touch within

2 days with your probation officer of the United States Probation

Office if you are arrested or questioned by a law-enforcement

officer.

7. You shall not enter into any agreement to act as an

"informer" or special agent for any law-enforcement agency.

8. You shall work regularly unless excused by your probation

officer, and support your legal dependents, if any, to the best of

your ability. You shall report within 2 days to your probation

officer any changes in employment.

9. You shall not drink alcoholic beverages to excess. You shall

not purchase, possess, use or administer marijuana or narcotic or

other habit-forming or dangerous drugs, unless prescribed or

advised by a physician. You shall not frequent places where such

drugs are illegally sold, dispensed, used or given away.

10. You shall not associate with persons who have a criminal

record unless you have permission of your probation officer.

11. You shall not possess a firearm or other dangerous

weapons.

12. You shall permit confiscation by your probation officer

of any materials which your probation officer believes may

constitute contraband in your possession and which your probation

officer observes in plain view in your residence, place of business

or occupation, vehicle(s) or on your person.

Appendix-60

13. You shall make a diligent effort to satisfy any fine,

restitution order, court costs or assessment, and/or court ordered

child support or alimony payment that has been, or may be,

imposed, and shall provide such financial information as may be

requested, by your Probation Officer, relevant to the payment of

the obligation. If unable to pay the obligation in one sum, will

cooperate with your Probation Officer in establishing an installment

payment schedule.

14. You shall submit to a drug test whenever ordered by

your probation officer.

SPECIAL CONDITIONS: (Applicable only if indicated)

(%) You shall participate as instructed by your probation officer

in a program approved by the Parole Commission for

treatment of narcotic addiction or drug dependency, which

may include testing and examination to determine if you

have reverted to the use of drugs.

( ) You shall participate in a community based program for the

treatment of alcoholism as directed by your probation

officer.

( ) You shall participate in an in-patient or an out-patient mental

health program as directed by your probation officer.

( ) You shall reside in and participate in a program of the

Community Corrections Center as instructed until discharge

by the Center Director, but no later than 120 days from

admission.

(a ) Other:

Appendix-61

You shall abstain from the use of alcohol and/or

other intoxicants both during and after

completion of any treatment program.

This CERTIFICATE will become effective on the day of release

shown on the reverse side. If the releasee fails to comply with any

of the conditions listed above, the releasee may be summoned to

a hearing or retaken on a warrant issued by a Commissioner of the

U.S. Parole Commission and reimprisoned pending a hearing to

determine if the release should be revoked.

Information concerning a releasee under the supervision of the

U.S. Parole Commission may be disclosed to a person or persons

who may be exposed to harm through contact with that particular

releasee if such disclosure is deemed to be reasonably necessary to

give notice that such danger exists. Information concerning

releasees may be released to a law enforcement agency as required

for the protection of the public or the enforcement of the conditions

of the release.

Appendix-62

VII. Declaration of Peter Y. Sussman in Opposition to Motion to

Dismiss Appeal Due to Mootness

[The following was filed by Chronicle in the Court of

Appeals on November 14, 1991 (cover page omitted). ]

DECLARATION OF PETER Y. SUSSMAN

1, Peter Y. Sussman, declare:

1. I am employed by The Chronicle Publishing Company

("Chronicle"), a plaintiff and appellant in this case, as editor of the

Sunday Punch section published weekly by the San Francisco

Chronicle as part of its combined Sunday edition with the San

Francisco Examiner.

2. I frequently publish in Sunday Punch the work of

freelance writers. I am particularly interested in pieces that offer

points of view different from those readers usually see. The pieces

written by plaintiff and appellant Dannie Martin, who had spent

most of his adult life in a world -- prisons -- that most people

know little about, were especially valuable in this regard. The

same may be true of pieces written by other convicts.

3. Although Dannie Martin is no longer in prison, |

continue to regularly receive submissions from convicts. | am very

much interested in publishing pieces by convicts; however, the

regulations challenged by plaintiffs and appellants in this case,

especially section 540.20(b) of Title 28 of the Code of Federal

Regulations, make it difficult for me to determine how to handle

these submissions. For example, it is not clear to me what I can

publish without subjecting the author to punishment for violating

the prohibition to "act as reporter." Moreover, | am aware that |

must either depart from my usual practice of putting bylines on

first-person commentary or subject the author to punishment for

violating the prohibition to "publish under a byline."

Appendix-63

4. The letter sent to Chronicle by the Director of the

Bureau of Prisons on March 15, 1991, which is an exhibit to the

Declaration of W. Ronald Ingram filed herewith, exacerbates my

difficulty in dealing with convicts' submissions. Mr. Quinlan's

letter appears to assert that I violate the regulations when | publish

anything written by a convict, even without a byline and even if

Chronicle does not pay the author. This gives me pause about

publishing any of the submissions that | receive from convicts. |

am especially concerned about passing any convict's submission on

to my co-workers who work on the news section (which I have

done in the past with Dannie Martin's work), since Mr. Quinlan

asserts that publishing an inmate's writing in the news section of

the Chronicle is a more clear violation than publishing it in Sunday

Punch.

I declare under penalty of perjury that the foregoing is true

and correct. Executed on November 11, 1991.

[signed]

Peter Y. Sussman

Appendix-64

VIII. Declaration of W. Ronald Ingram in Opposition to Motion

to Dismiss Appeal Due to Mootness

[The following was filed by Chronicle in the Court of

Appeals on November 14, 1991 (cover page omitted). |

DECLARATION OF W. RONALD INGRAM

I, W. Ronald Ingram, declare:

1. I am an attorney licensed to practice in the State of

California. I am employed by The Chronicle Publishing Company

("Chronicle"), a plaintiff and appellant in this case, as its general

counsel.

2. On March 15, 1991, The Chronicle Publishing Company

received a three-page facsimile transmission comprising a cover

shcet and a two-page letter from defendant and appellee J. Michael

Quinlan, Director of defendant and appellee Federal Bureau of

Prisons, to Richard T. Thieriot, president of Chronicle and

editor/publisher of the San Francisco Chronicle. A true and correct

copy of the facsimile transmission received by Chronicle is

attached hereto as Exhibit A.

I declare under penalty of perjury that the foregoing is true

and correct. Executed on November 11, 1991.

[signed]

W. Ronald Ingram

Appendix-65

TO:

FROM:

SUBJECT:

[Exhibit A]

CENTRAL OFFICE

GENERAL COUNSEL

320 FIRST STREET, N.W., RM. 754

WASHINGTON, D.C. 20534

(202) 307-3062 COMMERCIAL

367-3062 FTS

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

MR. RICHARD T. THIERIOT

HARLAN PENN

FAX #—- 415/495-7198

REFERENCE:

NUMBER OF PAGES BEING SENT 3

INCLUDING COVER SHEET

FAX - COMMERCIAL (202) 307-2995

FAX - FTS

367-2995

THANK - YOU, HAVE A NICE DAY!

Appendix-66

U.S. DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

Office of the Director Washington, DC 20534

Mr. Richard T. Thieriot

Editor

The Chronicle Publishing Co.

901 Mission Street

San Francisco, CA 94103

Re: Federal Inmate Dannie Martin

Dear Mr. Thieriot:

I was extremely disappointed to see the article on page Al2

of your February 9, 1991 edition, titled "U.S. Inmate-Workers Go

on Overtime for War,” authored "by a federal prisoner" described

as “a convicted bank robber and prisoner at the Federal

Correctional Institution in Phoenix who has been a frequent

contributor to Sunday Punch." It is clear that the article was

written by Dannie Martin, whose writings for your paper were the

subject of recent litigation. My concern stems from the fact that

the article appeared in the news section of your paper, something

which I believes violates the spirit, if not the letter, of the recent

decision by District Judge Charles A. Legge.

Appendix-67

Our ongoing concern, recognized in Judge Legge's opinion,

is that your decision to continue publishing submissions identifiable

as Dannie Martin's can potentially disrupt the orderly running of

FCI Phoenix by elevating the status of Dannie Martin with the

inmate population and undermining the staff's ability to maintain

discipline in an evenhanded fashion. This concern is substantially

heightened by the publication in your February 9, 1991 edition, of

an article in the news section of your newspaper. These actions

potentially create a danger to Dannie Martin if he is perceived by

other inmates as a "Big Wheel” or as one wielding influence within

the prison population.

While we remain very concerned about the publication of

submissions by Dannie Martin in the Sunday Punch section and

believe such publication violates the spirit of Judge Legges'

decision, we believe publication in the news section is of greater

concern in the light of Judge Legges' decision.

Given these concerns, I request you reconsider your decision

to continue publication of submissions by Dannie Martin as a

responsible constructive step toward assisting us in fulfilling our

public responsibility to run safe, orderly institutions and to protect

the individual safety of all inmates.

I write not with the intent that you publish this letter in your

paper, and in fact ask that this letter remain a private

communication.

Sincerely,

[SIGNED]

J. Michael Quinlan

Director

Appendix-68

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.