Petition for Writ of Certiorari — Arsberry v. Illinois
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
Supreme Court, U.S:
(1) FILED
No._91 352 yy > 72008
IN THE OFFICE OF TH: 5; ox
Supreme Court of the Anited States
OCTOBER TERM, 2001
KATIE ARSBERRY, PHYLLIS BROOKS, JEANNE GAMMON,
GUADALUPE GIRON, WILLIE MAE HAGGARD, LINDA
GOODMAN, CAROLYN HAWTHORNE, SUSAN HAZELY, MARY
HIGH, AKUA HOPE, ARLENE JOHNSON, ANTHONY MALTESE,
SANDY MARKIEWICZ, CATHERINE NYSTROM, ANNIE ROSS,
JAMILLAH FIELDS, BERENETTA GLASS, JUNE DYLLA,
ELIZABETH STEWART, MIDWEST CENTER FOR JUSTICE, LTD.,
LONNIE ARSBERRY, MAYA HAGGARD, JOHN HIGH, JOHN
MARKIEWICZ, RODNEY NYSTROM, NATHSON FIELDS, CHRIS
BROWN, JOHN BELOW, JUSTIN WILCOX, and MARY WEEKLY,
on behalf of themselves and all others similarly situated,
Petitioners,
<V.<
STATE OF ILLINOIS, MICHAEL S. SCHWARTZ, Director, Central
Management Services, DONALD N. SNYDER, Director, Illinois
Department of Corrections, COOK COUNTY, DUPAGE COUNTY,
KANE COUNTY, AMERITECH SERVICES, INC., AT&T, INVISION
TELECOM, MCI TELECOMMUNICATIONS CORPORATION, and
CONSOLIDATED COMMUNICATIONS PUBLIC SERVICES, INC.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SEVENTH CIRCUIT { COURT OF APPEALS
PETITION FOR A WRIT OF CERTIORARI
BARBARA J ; OLSHANSKY STEPHEN G. SELIGER
Counsel of Record SELIGER, ELKIN & DOLAN
ROBERT T. PERRY 155 North Michigan Avenue
CENTER FOR Chicago, Illinois 60622
CONSTITUTIONAL RIGHTS 312-616-4244
666 Broadway, Seventh Floor
New York, New York 10012
212-614-6439
Seal he,
sis
QUESTIONS PRESENTED
1. Whether the Court of Appeals’ unprecedented holding that
inmates have no First Amendment rights to telephone access
because it is extremely rare for inmates and those whom they
call to use the telephone to convey communications protected
by the First Amendment is consistent with this Court’s prior
First Amendment and Prisoners’ Rights decisions?
2. Whether the Circuit Court of Appeals’ refusal to consider the
First Amendment rights of free citizens, including inmates’
families, friends, ministers, and counsel, to communicate and
associate with inmates by telephone -- in addressing a challenge
to the financial burdens imposed by the present inmate
telephone system in Illinois -- is consistent with this Court’s
decision in Procunier v. Martinez?
-ii-
PARTIES BELOW
The parties before this Court are petitioners Katie Arsberry,
Phyllis Brooks, Jeanne Gammon, Guadalupe Giron, Linda
Goodman, Willie Mae Haggard, Carolyn Hawthorne, Susan
Hazely, Mary High, Akua Hope, Arlene Johnson, Anthony
Maltese, Sandy Markiewicz, Catherine Nystrom, Annie Ross,
Jamillah Fields, Brenetta Glass, June Dylla, Elizabeth Stewart,
Midwest Center for Justice, Ltd., Lonnie Arsberry, Maya
Haggard, Nathson Fields, John High, John Markiewicz, Rodney
Nystrom, Chris Brown, John Below, Justin Wilcox, and Mary
Weekly, on behalf of themselves and all others similarly
situated, and respondents State of Ilinois, Michael S. Schwarz,
as Director of Central Management Services, Donald N. Snyder,
as Director of Illinois Department of Corrections, Cook County,
Dupage County, Kane County, Ameritech Services, Inc.,
AT&T, Invision Telecom, MCI Telecommunications
Corporation, -and Consolidated Communications Public
Services, Inc. Since this action was initiated, one of the
respondents has changed its name to MCI Worldcom, Inc. from
MCI Telecommunications Corporation. Invision Telecom's
successor in interest is Evercom Sysiems, Inc.
RULE 29.1 STATEMENT
Pursuant to Rule 29.1, petitioners inform the Court that
they have no parent companies and no subsidiaries.
-iv-
TABLE OF CONTENTS
CURIS Te PIIDEDUEED oc bcncccccccascescsssesis i
PRED BRP asec icaesrisksceveensscenéeues ii
8 by AG iy yi | worrerrrrererrrer erry Ty iil
py) Fe oes sy eerererrererrervre Try iv
TAREE OF AUTRES MED 6c cc ccncwsesnccssanguass Vii
CPS APT kc kincisancccsttceuteeessenas ]
STATEMENT OF JURISDICTION ..........cccceee |
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED ............ 2
STATEDGENT OF SHEE CASS 2 onc ccc ccccscvcccneses 3
SUMMARY OF SEE RPUEEE Nas vivkndesaeeces 9
REASONS FOR GRANTING THE WRIT ............ 10
I. THIS CASE PRESENTS IMPORTANT
ISSUES WORTHY OF THIS COURT’S
REVIEW CONCERNING THE FIRST
AMENDMENT PROTECTIONS AFFORDED
INMATES AND THE FAMILY MEMBERS,
FRIENDS, MINISTERS, AND COUNSELORS
THEY CONVERSE AND ASSOCIATE
WEE SE OY BRM UNO 06s cst ccawansnsannes 10
eV-
THE SEVENTH CIRCUIT'S HOLDING
THAT THERE IS NO FIRST AMENDMENT
RIGHT IMPLICATED IN ACCESS TO
PRISON TELEPHONES DIRECTLY
CONFLICTS WITH THE RULINGS OF A
GREAT MAJORITY OF THE CIRCUITS ...... 13
THE SEVENTH CIRCUIT ERRED IN
REJECTING PETITIONERS’
CHALLENGE TO THE SINGLE
PROVIDER/COLLECT-CALL ONLY
SYSTEM AND COMMISSION POLICY ...... 16
. The Seventh Circuit's Holding That
Inmates Have No First Amendment Rights
to Telephone Access Cannot Be Reconciled
With This Court’s Prior First Amendment and
Prisoners’ Rights Decisions .................+. 16
. The Seventh Circuit Failed to Recognize
That the Single Provider/Collect-Call Only
System and the Commission Policy Implicates the
First Amendment Rights of Not Only Inmates But
Also Their Families, Friends, and Loved Ones ... 19
. Petitioners Have Stated a Valid Claim That
the Single Provider/Collect-Call Only System
and Commission Policy Violate Their
First and Fourteenth Amendment Rights ........ 21
CUOINNCEARIEUES vccccccccocvocscccecsesseseusaans 25
-vi-
APPENDICES
APPENDIX A
SECOND AMENDED COMPLAINT IN
THE DISTRICT COURT ACTION,
OTN; (Foi > & EPPPPPerrrrTTTrTrTrrrer ire Al
APPENDIX B
ORDER OF HON. WILLIAM J. HIBBLER OF
THE U.S. DISTRICT COURT, N.D. ILLINOIS,
DATE? REATIUEE 22, BUGO ccc ccccccccccccsccccces A37
APPENDIX C :
DECISION OF THE U.S. COURT OF APPEALS,
SEVENTH CIRCUIT, DATED MARCH 19, 2001 .... A42
APPENDIX D
ORDER OF THE U.S. COURT OF APPEALS,
SEVENTH CIRCUIT, DATED MARCH 29, 2001,
DENYING PETITION FOR REHEARING AND
PETITION FOR REHEARING EN BANC ........... AS4
APPENDIX E
U.S. CONSTITUTION, AMENDMENTS I & XIV(1) . . AS6
APPENDIX F
SPEC Nan ndsdasccocctsacccennssscaons AS7
-vii-
TABLE OF AUTHORITIES
FEDERAL CASES
Allen v. Cuomo, 100 F.3d 253 (2d Cir. 1996) ........cccceceeees 24
Beauchamp v. Murphy, 37 F.3d 700 (ist Cir. 1994) ........... 22
Benzel v. Grammar, 869 F.2d 1105 (8th Cir.),
COFt. Gamad, GIS UB. FHS CUSED) cccccesccncsssscasccrcesessscsssessees 14
Connick v. Myers, 461 U.S. 138 (1983) ......cscscececeeeeees 13,18
Continental T.V. v. GTE Sylvania, 433 U.S. 36 (1977) ...... 15
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
aes neon diss 18
Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976) ....cecsesssesssees- 16
Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978) ............... 15
First National Bank of Boston v. Bellotti,
es I EE pain tceiietpitasctincsbadnannctsenceiansneiilndaniniecninatonen 18
Givhan v. Western Line Consolidated School District,
eae I tai catia ai ictaabihcichideadneapnababibdiananinisene 13,17
Grossjean v. American Press Co., 297 U.S. 233 (1936) ...... 8
Johnson v. California, 207 F.3d 650 (9th Cir. 2000) ...... 8,14
Johnson v. Galli, 596 F. Supp. 135 (D. Nev. 1984) ............ 15
Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) ............. 22
~ Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996) .....c..secsssees-0 14
-Vill-
Kikimura v. Turner, 28 F.3d 592 (7th Cir. 1994) .............. 23
Lopez v. Reyes, 692 F.2d 15 (Sth Cir. 1982) .......... eee 15
McDonald v. Armontrout, 908 F.2d 388 (8th Cir. 1990) .... 14
Mine Workers v. Illinois Bar Ass’n,
a EE ET sasisditdncesa bcaiseisennaselelaniamanniedasteaiians 18
Minneapolis Star & Tribune Co. v. Minnesota Commissioner
SF IE, GE Ts FIR CRO wthiineceiaisinnsnaiiialsindaniienen 8
Montana v. Commissioners Court,
ee a CD wicienniciieintaeestaatendhineiannatebiiis 15
Moore v. City of East Cleveland, 431 U.S. 494 (1977) ...... 20
Papasan v. Allain, 478 U.S. 265 (1986) ....... ee eeeeeeeeeeeeeeeees 21
Pell v. Procunier, 417 U.S. 817 (1974) ........ eee. eeecceeeees 17,18
Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989) ......... 22
Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996) .......... 14
Procunier v. Martinez, 416 U.S. 396 TOPOS taiisson 13, 18, 19
Rankin v. McPherson, 483 U.S. 378 (1987) .........csssseeeeeeee 18
Roberts v. United States Jaycees, 468 U.S. 609 (1984) ...... 20
Shaw v. Murphy, __ U.S. __, 121 S. Ct. 1475 (2001) ......... 12
Shimer v. Washington, 100 F.3d 506 (7th Cir. 1996) ......... 23
Stanley v. Illinois, 405 U.S. 645 (1972) ...............cessseeeseeeees 20
-ix-
Strandberg v. City of Helena,
Fk Ee re Ge, FD eh trnnncnintrnnnicnsiniccinsinncrnencinnins 14
Thornburgh v. Abbott, 490 U.S. 401 (1989) .............0. 16, 22
Thornhill v. Alabama, 310 U.S. 88 (1940) 0.0... eee 18
Tucker v. Randall, 944 F.2d 388 (7th Cir. 1991) «0.2... 16
Turner v. Safley, 482 U.S. 78 (1987) ......:ccesccssseesseeeees passim
United States v. Footman, 215 F.3d 145 (1st Cir. 2000) 8, 15
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) ............ 14
Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978), rev'd,
es ee ee eckicttsciptlcinthadaheenniciiciiandenniinte 15
Young-Bey v. Swanson, 2001 U.S. App. LEXIS 2729
Cis FI Pit chninapaiicctcsenisSnstincevatniiietantaekinttnseanntesntininicininain 14
STATUTES
Be RO nase cicacbaeat nents nchanipaseninlemniniontonins ]
cs SUIT cinceaisisnsredenichanenlniniibicnaatantannannomunnianeanicanios 2
First Amendment to the
United States Comstitution ....................ccccccccsssessssssesees passim
Fourteenth Amendment, Section 1, to the
CJentil UN CIID aecisiciisiscessccccncassccccvenansannnsivn passim
INTL LE ee : 7a Me ee ' * ere H aia . "
ie
PETITION FOR WRIT OF CERTIORARI
Petitioners Katie Arsberry, et al. respectfully submit this
petition for a writ of certiorari to review the judgment and
opinion of the United States Court of Appeals for the Seventh
Circuit in Arsberry v. State of Illinois, filed on March 19, 2001.
OPINIONS BELOW
The United States Court of Appeals for the Seventh
Circuit modified and affirmed the judgment of the United States
District Court for the Northern District of Illinois dismissing the
complaint. The Seventh Circuit’s opinion is reported at 244
F.3d 558 (7th Cir. 2001), and is reprinted in the Appendix
hereto at A42 - A53. The district court’s opinion is reported at
117 F. Supp. 2d 743 (N.D.I1I. 2000), and is reprinted in the
Appendix at A37 - A4l. The Seventh Circuit denied
petitioners’ petition for rehearing with suggestion for rehearing
en banc on May 29, 2001. The denial of rehearing is not
reported, and is reprinted in the Appendix at A55.
STATEMENT OF JURISDICTION
The opinion of the United States Court of Appeals for
the Seventh Circuit from which petitioners seek review was
issued on March 19, 2001. The Court of Appeals denied a
timely petition for rehearing with suggestion for rehearing en
banc on May 29, 2001. This petition is being timely filed
within 90 days of that denial.
The jurisdiction of this Court to review the judgment of
the Court of Appeals is invoked under 28 U.S.C. § 1254(1).
i
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The texts of the First Amendment and the Fourteenth
Amendment, Section 1, to the United States Constitution, as
well as the text of 42 U.S.C. § 1983 are set forth in the
Appendix at A56 - A57.
Ne ee ee ee ee ee ee
A,
STATEMENT OF THE CASE
i. Factual Background
This petition arises from a constitutional and statutory
challenge to the creation and operation of exclusive dealing
contracts between telephone companies and state and county
corrections departments in the State of Ilinois under which
telephone companies like AT&T, MCI Worldcom, and others,
are given exclusive privileges to provide telephone service at
one or more correctional facilities in exchange for the payment
of large “signing bonuses” and “commissions.” (A12)
These contracts are not unique to Illinois. Across the
country, state and county corrections departments have entered
into similar exclusive dealing contracts with private telephone
companies for the provision of inmate telephone services.
Telephone companies vie for these contracts because they offer
access to a high volume system of literally captive customers --
inmates -- over which these companies can maintain monopoly
control and thereby ensure high profits. To secure exclusive
privileges to provide telephone service to inmates at particular
facilities, telephone companies agree to pay corrections
departments signing bonuses and commissions up to 50% of the
gross annual revenue derived from inmate-initiated calls. Over
the past several years, corrections departments in Illinois have
collected in excess of $15 million per year in commissions from
the telephone companies to which they have awarded exclusive
privileges. (A12)
In [linois, as in the vast majority of jurisdictions in the
country, corrections departments sharply limit and tightly
regulate telephone usage by the individuals who are incarcerated
in the facilities they operate. Under the Illinois inmate
telephone system, inmates may not receive telephone calls.
While they may place telephone calls, they must do so on a
collect-call only basis. Moreover, they may only place such
ie
collect calls through the telephone company awarded exclusive
privileges to provide telephone service to the correctional
facility in which they are incarcerated. (A12)
To pay the exorbitant commissions demanded by
corrections departments and to ensure high profits for
themselves, telephone companies charge significantly more for
the collect calls placed by inmates than they charge for collect
calls placed by the general public. Family members, friends,
ministers, counselors, and others who accept calls from inmates
(“inmate call recipients”) thus must pay considerab] y more than
those who accept collect calls from other sources. In addition
to excessive per minute charges, inmate call recipients are
subjected to excessive surcharges and connection fees for each
call placed. The rates charged to a person accepting a collect
call from an inmate in Illinois are thus among the highest, if not
the highest, for any type of telephone service available
nationally, well in excess of charges generally available to the
public for comparable services. (A12 - A13)'
Under the single provider/collect-call only system in
effect in correctional facilities in Illinois and elsewhere, neither
inmates nor call recipients can shop around for lower priced
telephone service. They cannot choose their company. Nor can
they switch to “800" or “888" numbers, dial-around savings
plans, or calling cards to avoid paying the excessive rates that
they pay under the present system. (A13)
There are a number of alternatives to the single-
' For example, a call recipient accepting a typical long-distance call
from a prison must pay an initial “surcharge” averaging $3 a call (and
in some cases nearly $5), and a charge thereafter as high as 60 cents per
minute. Thus, a three-minute call can range from $3.50 to $7.00.
(Record in the Seventh Circuit (“R.”), 62 at 15-16; see, e.g., R. 40 at
AM30, A23-29).
die
provider/coliect-call only system in effect in Illinois which
would impose far less of a financial burden on inmates and
inmate call recipients while concomitantly meeting legitimate
security concerns at no additional cost to corrections
departments. The Federal Bureau of Prisons, for example, uses
a debit account system under which the cost of inmate calls is
only fifteen cents per minute.’ Corrections departments in
Illinois, however, refuse to consider these alternatives.
Needless to say, the excessive charges — in effect, taxes
— under the single provider/collect-call only system and
commission policy sharply limit the duration and number of
telephone calls that inmates may make and that family, friends,
ministers, and counselors can afford to accept. For the many
individuals seeking to maintain their relationships with people
currently incarcerated in state and county facilities, this system
places an unlawful and unjustifiable burden on their
constitutionally guaranteed rights to freedom of speech and
association.
B. Procedural History
Petitioners are the families, friends, ministers,
counselors, attorneys of, and other persons who have close
relationships with, individuals incarcerated in the prisons of the
State of Illinois and in the jails of Cook, DuPage, and Kane
Counties in [linois. They are also inmates currently
incarcerated in those correctional facilities. Petitioners brought
this action against respondents telephone companies and
corrections departments in April 1999, alleging that the
exclusive dealing contracts establishing the single
provider/collect-call only system and commission policy
violated their rights to freedom of speech and association, and
due process and equal protection of the laws under both the
*(R. 36 at 14-16).
United States and Illinois constitutions, and violated the
Communications Act, the Sherman Act, and the Illinois
Antitrust Act. Petitioners also sought injunctive relief to
restrain respondents from maintaining the system. (A1 - A36)
In August and September of 1999, respondents filed
motions to dismiss the complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim for
relief. Petitioners opposed the motions on the ground, inter
alia, that they had adequately pled First and Fourteenth
Amendment claims and that this Court’s prior decisions
involving prisoners’ rights, including Turner v. Safley, 482 U.S.
78 (1987), mandated an evidentiary hearing to determine
whether the single provider/collect-call only system and
commission policy were “reasonably related to legitimate
penological interests.” Jd. at 89.
In a decision dated March 22, 2000, the district court
dismissed the complaint in its entirety, concluding that
petitioners’ claims were non-justiciable under the filed-rate and
primary-jurisdiction doctrines. (A37 - A41)
Petitioners’ appeal was filed with the court of appeals in
March 2000. Oral argument was heard on the appeal in
December 5, 2000. By opinion dated March 19, 2001, the court
of appeals modified and affirmed the district court’s decision
finding, inter alia, that petitioners’ First Amendment claims
lacked merit and that their remaining constitutional claims were
barred by the filed-rate and primary-jurisdiction doctrines.
Petitioners’ petition for rehearing with suggestion for rehearing
en banc was denied on May 29, 2001.
ot Opinions Below
The district court dismissed petitioners’ case in its
entirety on the grounds that all claims — constitutional and
statutory — were “non-justiciable” under the filed-rate and )
=Je .
primary-jurisdiction doctrines. The court concluded that
because all of petitioners’ claims “‘at some level” concerned
rates charged for telephone service, they must be referred to the
Federal Communications Commission (“FCC”) and the Illinois
Commerce Commission (“ICC”). The district court rendered no
opinion as to whether petitioners had stated claims upon which
relief could be granted. (A37 - A41)
The Seventh Circuit modified and affirmed the district
court’s decision. After discussing various “jurisdictional or
quasi-jurisdictional bars” to elements of petitioners’ suit
separate and apart from those identified by the district court
(A43 - A44), the court concluded that neither the filed-rate
doctrine nor primary- jurisdiction doctrine completely barred
petitioners’ First Amendment challenge to the exclusive dealing
contracts awarded by corrections departments to telephone
companies. (A44 - A48) The Seventh Circuit next proceeded
to consider petitioners’ claims on the merits. (A48 - A53)
In holding that petitioners failed to state a valid First
Amendment claim, the Seventh Circuit opined that “no one
before these plaintiffs supposed the telephone excise tax to be
an infringement of free speech” (A48). The court further stated
that “no one supposes” that the First Amendment exempts
manufacturers of paper from the corporate income tax, or “even
forbid[s] taxing those manufacturers more heavily than
manufacturers of products that are less important as inputs into
the production of communications media” (A48).°
* Contrary to the Seventh Circuit’s characterization of petitioners’ First
Amendment claim, petitioners do not challenge the telephone excise tax,
but rather challenge the tax on inmate telephone service imposed as a
result of the exclusive dealing contracts between corrections departments
and telecommunications companies. There are crucial differences
between the two taxes. While the telephone excise tax is of general
applicability, the tax on inmate telephone service applies only to a select
group of individuals. Morever, whereas the telephone excise tax is a
The Seventh Circuit cited but distinguished Grossjean
v. American Press Co., 297 U.S. 233 (1936), in which this
Court invalidated a tax imposed on newspaper advertising
revenues, because petitioners did not allege that the tax imposed
by the contracts challenged here was motivated by a desire to
limit free speech. (A48 - A49) While finding this case “a bit
closer” to Minneapolis Star & Tribune Co. v. Minnesota
Commissioner of Revenue, 460 U.S. 575 (1983), in which this
Court invalidated a special use tax imposed on a group of
newspapers, the Seventh Circuit, perceived a “vital distinction”:
The entire content of newspapers, in contrast to
telephone calls, is protected by the First
Amendment . . . Although the telephone can be
used to convey communications that are
protected by the First Amendment, that is not its
primary use and it is extremely rare for inmates
and their callers to use the telephone for this
purpose. Not to allow them access to a
telephone might be questionable on other
grounds, but to suppose that it would infringe
the First Amendment would be doctrinaire in the
extreme, United States v. Footman, 215 F.3d
145, 155 (ist Cir. 2000), though the Ninth
Circuit disagrees. Johnson v. California, 207
F.3d 650, 656 (9th Cir. 2000). (A49).
The Seventh Circuit dismissed petitioners’ remaining
claims either on the merits or under the filed-tariff and primary-
jurisdiction doctrines (A49 - A53).
product of legislative debate and authorization, the inmate telephone
service tax is a creature of administrative fiat.
-9-
SUMMARY OF THE ARGUMENT
This case is of significant national import not only
because of its impact on the free speech and associational rights
attendant to inmate telephone service, but also, more broadly,
because of its impact on First Amendment protections generally.
What the Seventh Circuit has done in this case is to
rewrite this Court’s First Amendment jurisprudence to the
extent that protection is no longer accorded to private
conversations, to speech which does not solely address matters
of public concern, or to communications between prison
inmates and their families, friends, ministers, and counselors.
No aspect of the Court’s jurisprudence even hints at such
conclusions. To the contrary, the Court’s First Amendment
decisions proclaim precisely the obverse. See Point L.
While reasonable minds may agree that many
restrictions are appropriate and necessary during incarceration,
this Court has made clear that inmates are not completely
divested of their constitutional rights at the jailhouse door. As
demonstrated below in Point Il, the Arsberry court’s holding
that inmates possess no First Amendment right to use the
telephone to communicate with those who have an interest in -
speaking with them conflicts with the decisions of every circuit
court in the nation to address this issue.
Point II addresses the Seventh Circuit’s failure to
recognize that (i) inmates have First Amendment rights to
telephone access; (ii) inmate call recipients possess
independent free speech rights; and (iii) both inmates and
inmate call recipients possess a right to freedom of association
separate and apart from their right to freedom of speech. In this
regard, the Arsberry decision directly contravenes this Court’s
decision in Turner v. Safley, 482 U.S. 78, 95-97 (1987). Given
the absence of a reasonable penological justification for use of
the single provider/collect-call only system and commission
-10-
policy and the tremendous burden it places on petitioners’
constitutional rights, the application of the Turner analysis in
this case mandates the conclusion that petitioners have stated a
claim for violation of their rights to freedom of speech and
association.
REASONS FOR GRANTING THE WRIT
I. THIS CASE PRESENTS IMPORTANT ISSUES
WORTHY OF THIS COURT’S REVIEW
CONCERNING THE FIRST AMENDMENT
PROTECTIONS AFFORDED INMATES AND
THE FAMILY MEMBERS, FRIENDS,
MINISTERS, AND COUNSELORS THEY
CONVERSE AND ASSOCIATE WITH BY
TELEPHONE
From the start, the case has been regarded as one of
significant national import. There are more than two million
people incarcerated in the United States, with the vast majority
held in state prisons and county jails. There is no disagreement
with the principle that these facilities were designed as places
for the punishment and rehabilitation of criminals, and not as
profit-making enterprises. Yet, across the country, a system has
developed that capitalizes on burgeoning prison populations and
their families.
With very few exceptions, state and county departments
which operate correctional facilities have awarded telephone
companies exclusive privileges to provide inmate telephone
service at their facilities in return for huge “commissions.”
Across the country, telephone companies now compete for such
exclusive dealing contracts and agree to pay these commissions
as well as signing bonuses in exchange for monopolies over
inmate telephone systems. The commissions demanded by
corrections departments are not intended to cover the operating
-11-
costs of inmate telephone systems — those costs are covered by
the telephone companies — nor are they related in any way to
telephone usage by inmates. They are in fact the profits
demanded by corrections departments on the incarceration of
their citizens. Yet no state legislature to date has authorized the
imposition of such a tax.
These lucrative contracts have engendered a cruelly
exploitative system under which the families, friends, ministers,
and counselors of inmates must bear the burden of an
unlegislated tax imposed on them by virtue of states’
profiteering schemes. Moreover, because inmates are limited to
making only collect calls, cheaper alternatives are unavailable
to them. As a direct result of the commissions demanded and
the bar precluding the selection of one’s provider or cheaper
service options, those who wish to communicate with 1 inmates
must pay exorbitant rates.
The tax on inmate telephone calls has significantly
burdened families’ efforts to maintain contact with loved ones
who are incarcerated hundreds of miles away. For many people
-- particularly for children and those who are elderly or ill --
regular travel over such distances is impossible, and telephone
conversations are the only effective means of communication.
(A18-A19) Yet, because of the single provider/collect-call only
system and commission policy, inmate telephone service is both
limited and extremely expensive. Petitioners, like the many
millions of people in the same situation across the country, have
had their telephones disconnected for extended periods of time
because of their inability to meet this expense, causing
significant family disruption. (A14-A19) With government’s
entrance into the telecommunications market, the inflated
“costs” of the inmate telephone system are borne by those with
no options and no power to fight such powerful monopolies.
The single provider/collect-call only system and
commission policy for inmate telephone service actively
2.
discourages and prevents inmates from maintaining important
ties to the outside world to which they eventually will return. In
so doing, it plainly undermines the societal and correctional
goals of rehabilitation and re-assimilation. More alarmingly, it
unconstitutionally burdens inmates’ and their families’ free
speech and associational rights as it does so.
In rejecting petitioners’ First Amendment challenge, the
Seventh Circuit disregarded this Court’s unequivocal
jurisprudence governing the First Amendment rights of inmates.
In Turner v. Safley, 482 U.S. 78 (1978), this Court recognized
that prisoners have First Amendment rights. Despite the clarity
of the Court’s decisions on these issues, see also Shaw v.
Murphy, ___ U.S. __, 121 S. Ct. 1475 (2001), and the consistent
adherence to these constitutional principles in all of the lower
courts, the court below squarely held that prisoners have no
such rights and that no analysis is required to determine whether
the single provider/collect-call only system and commission
policy bears a reasonable relationship to any legitimate security
or penological interest. Arsberry, 244 F.3d at 564-65. (A48 -
A49)
The Arsberry decision also utterly ignored this Court’s
settled decisional authority holding that prisoners and their
families’ have reciprocal rights to familial association which
survive incarceration, because attributes of the family
relationship — expressions of emotional support, decisionmaking
regarding family obligations and child-rearing, and expectations
of the prisoner’s reentry into the family — continue to exist
despite the fact of imprisonment. See Turner v. Safley, 482 U.S.
at 95-97. To the extent they restrict non-inmates’ ability to
communicate with family members in prison, respondents’
policies burden petitioners’ rights to familial and marital
association protected by the First and Fourteenth Amendments.
This case has import far beyond its impact on the
ongoing debate over the lawfulness of the single
«33
provider/collect-call only system for inmate telephone service
— beyond even its impact on the First Amendment rights of
inmates and those on the outside seeking to communicate with
them. The case also matters because the Seventh Circuit has cast
in doubt the First Amendment protections afforded to private
telephone calls and to private conversations generally, which
account for the vast majority of speech.
The degree to which the Seventh Circuit has departed
from this Court’s prior First Amendment decisions warrants
review by this Court. When, since Procunier v. Martinez, 416
U.S. 396 (1974), has a court of appeals Suggested that the
Opportunity to write letters and have visitors extinguishes
altogether any First Amendment rights inmates may have in
other means of communication? When, since Givhan vy.
Western Line Consolidated School District, 439 U.S. 410
(1979), has a court of appeals suggested that private
conversations, including private telephone calls, are unworthy
of First Amendment protection? When, since Connick v. Myers,
-461 U.S. 138 (1983), has a court of appeals suggested that the
First Amendment only protects speech on matters of public
concern?
For all of these reasons, this case warrants plenary
review by this Court.
Il. THE SEVENTH CIRCUIT’S HOLDING THAT
THERE IS NO FIRST AMENDMENT RIGHT
IMPLICATED IN ACCESS TO PRISON
TELEPHONES DIRECTLY CONFLICTS WITH
THE RULINGS OF A GREAT MAJORITY OF
THE CIRCUITS
In holding that it “would be doctrinaire in the extreme”
to recognize that inmates have a First Amendment right to
telephone access, (A49), the Seventh Circuit has created a
-14-
conflict among the circuits which needs to be resolved. Every
other circuit to consider this matter has either explicitly or
implicitly recognized that inmates possess such a right.
Thus, for example, the Ninth Circuit has stated, time and
again, that “prisoners have a First Amendment right to
telephone access,” subject to reasonable security concerns.
Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) (per
curiam); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996)
(same); Strandberg v. City of Helena, 791 F.2d 744, 747 (9th
Cir. 1986) (“Courts have recognized detainees’ and prisoners’
[F]irst [A]mendment right to telephone access . . . subject to
rational limitations in the face of legitimate security interests of
the penal institution”).
Similarly, in Washington v. Reno, 35 F.3d 1093 (6th Cir.
1994), the Sixth Circuit held that “persons incarcerated in penal
institutions retain the First Amendment rights to communicate
with family and friends,” upholding the district court’s finding
that such rights were violated by certain changes to the inmate
telephone system in the federal prisons. Jd. at 1099-1100. The
Eighth Circuit too has followed suit. See Benzel v. Grammar,
869 F.2d 1105, 1108 (8th Cir.) (acknowledging that “prison
inmates may have a [First Amendment] right to use the
telephone for communication with relatives and friends, . . .
subject to rational limitations in the face of legitimate security
interests of the penal institution.”), cert. denied, 493 U.S. 895
(1989); McDonald v. Armontrout, 908 F.2d 388, 392 (8th Cir.
1990) (noting that death row inmates have First Amendment
rights to limited telephone access). The Tenth and Eleventh
Circuits as well have each recognized inmates’ First
Amendment rights to telephone access, invoking this Court’s
analysis in Turner v. Safley, 482 U.S. 78 (1987), to consider
whether various limited restrictions on inmates’ telephone
access abridged their freedom of speech. Young-Bey v.
Swanson, 2001 U.S. App. LEXIS 2729 (10th Cir. 2001); Pope
v. Hightower, 101 F.3d 1382, 1384 & n.1 (11th Cir. 1996).
-15-
While not squarely addressing sentenced inmates’ First
Amendment rights to telephone access, the First, Second, and
Fifth Circuits have all recognized that pretrial detainees have
such a First Amendment right. Feeley v. Sampson, 570 F.2d
364, 374 (1st Cir. 1978) (“the consensus has been in favor of at
least some access” to telephone by pretrial detainees for social
calls); Wolfish v. Levi, 573 F.2d 118, 126 (2d Cir. 1978)
(“pretrial detainees enjoy a [First [A]mendment right to
communicate by telephone with persons outside the prison”),
rev'd on other grounds, 441 U.S. 520 (1979); Montana v.
Commissioners Court, 659 F.2d 19, 23 (Sth Cir. 198 1) (“courts
have guarded against unreasonable restrictions on telephone
use”). In addition, the Fifth Circuit has suggested that
sentenced inmates enjoy First Amendment rights to at least
some telephone access. Lopez v. Reyes, 692 F.2d 15, 17 (5th
Cir. 1982) (“A prisoner in maximum security has no right to
unlimited telephone use” (emphasis added)).
In sum, no doubt because “oftimes use of a telephone is
essential” to inmates and their families, friends, ministers, and
attorneys, Johnson v. Galli, 596 F. Supp. 135, 138 (D. Nev.
1984), eight circuits have recognized that sentenced inmates or
“In support of its refusal (at A49) to recognize that inmates have First
Amendment rights to telephone access, the Seventh Circuit cited the First
Circuit's decision in United States v. Footman, 215 F.3d 145 (1st Cir.
2000). That case, however, did not involve a First Amendment challenge
to restrictions on inmates’ access to the telephone. To be sure, the First
Circuit stated that “prisoners have no per se constitutional right to use a
telephone, id. at 155, but it did not hold that they have no constitutional
right at all to make telephone calls. Even assuming, arguendo, that
inmates have no unabridgeable right to telephone access, that does not
preclude them from having a more limited right of access to such service.
Cf. Continental T.V. v. GTE Sylvania, 433 U.S. 36 (1977) (While non-
price vertical restraints are no longer per se unreasonable restraints of
trade, they may be unreasonable restraints of trade in particular
circumstances).
=16-
pretrial detainees, or both, have First Amendment rights to
telephone access, and no circuit, until now, has ruled to the
contrary. The Seventh Circuit thus stands alone, and in direct
conflict with the great majority of circuits, in refusing to
recognize such a right.”
Il. THE SEVENTH CIRCUIT ERRED IN
REJECTING PETITIONERS’ CHALLENGE TO
THE SINGLE PROVIDER/COLLECT-CALL
ONLY SYSTEM AND COMMISSION POLICY
A. The Seventh Circuit’s Holding That Inmates
Have No First Amendment Rights to
Telephone Access Cannot Be Reconciled
With This Court’s Prior First Amendment
and Prisoners’ Rights Decisions
This Court has made unequivocally clear that “‘prison
walls do not form a barrier separating prison inmates from the
protections of the Constitution,’” Thornburgh v. Abbott, 490
U.S. 401, 407 (1989) (quoting Turner v. Safley, 482 U.S. 78, 84
(1987)), and that inmates retain First Amendment rights to
communicate with the outside world subject, of course, to
reasonable security concerns. Pell v. Procunier, 417 U.S. 817,
822 (1974). While upholding various restrictions on inmate
>The Arsberry decision stands in direct conflict not only with the majority
of other circuits but also with the Seventh Circuit’s own prior decisions.
In Tucker v. Randall, 944 F.2d 388 (7th Cir. 1991), the Seventh Circuit
declared that “unreasonable restrictions on prisoner’s telephone access
may ... violate the First and Fourteenth Amendments.” /d. at 390. And,
in Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976), it held that the plaintiff
inmates had stated “a claim of denial of due process” in alleging a “lack
of sufficient telephones” to communicate with the outside world. /d. at
999-1000. In holding here that inmates have no First Amendment right to
telephone access, the Seventh Circuit never acknowledged, let alone
addressed, its prior rulings on the issue, even though petitioners brought
those rulings to the court’s attention.
-17-
communications with families, friends, and loved ones, the
Court has never suggested, let alone held, that the availability of
some means of communications with the outside world, such as
letters or visits, extinguishes altogether any First Amendment
rights that inmates may have to use other means of
communication. Indeed, the Court has implied the exact
opposite. Pell v. Procunier, 417 U.S. at 823-24 (the availability
of alternative means of communication, though a relevant
factor, “does not extinguish altogether’ an inmate’s
“constitutional interest” in other means of communication).
In holding nonetheless that inmates lack First
Amendment rights to telephone access, the Seventh Circuit
inexplicably assumed (at A49) that “it is extremely rare for
inmates and their call[ees] to use the telephone” to convey
communications protected by the First Amendment. That
assumption not only disregards this Court’s prior
pronouncements on prisoners’ rights but also flies in the face of
its prior First Amendment decisions in other contexts.
Furthermore, it is made without the careful factual analysis the
subject, and this Court, demand.
The simple fact that inmates engage in private
conversations rather than issue public declarations when they
call their families, friends, and loved ones does not deprive
those telephone calls of First Amendment protection. “The First
Amendment forbids abridgment of the ‘freedom of speech.’
Neither the Amendment itself nor our decisions indicate that
this freedom is lost to [one] who arranges to communicate
privately . . . rather than to spread his views before the public.”
Givhan v. Western Line Consolidated School District, 439 U.S.
410, 415-16 (1979) (statements made by public school teacher
in private conversations with school principal protected by First
Amendment). To suggest otherwise, as the Seventh Circuit
does, would be to exclude the vast majority of speech from First
Amendment protection.
Nor does the specific content of inmates’ telephone
conversations with families, friends, and loved ones somehow
place their calls outside the boundaries of First Amendment
protection. Speech on matters of public concern, of course,
“lies at the heart of the First Amendment’s protection.” First
National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978)
(citing Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940)).
During their conversations, inmates and their callees doubtless
regularly discuss matters of public concern, including, most
notably, prison conditions and the criminal justice system, even
if only because those matters are also of private concern to
inmates and their families, friends, and loved ones. (C7.
Procunier v. Martinez, 416 U.S. at 408 (implying that inmates’
written correspondence often include grievances and complaints
about prison conditions). “The private nature of [these
conversations] does not vitiate the status of [such discussions]
as addressing . . . matter[s] of public concern.” Rankin v.
McPherson, 483 U.S. 378, 387 n.11 (1987). Moreover, as this
Court has observed, inmates may choose to “communicate with
the press” on matters of public concern “through their families,
friends, clergy, or attorneys.” Pell v. Procunier, 417 U.S. at 825.
To be sure, inmates also discuss matters of purely
private concern in telephone calls to their families, friends, and
loved ones. The First Amendment, however, ““does not protect
speech and assembly only to the extent it can be characterized
as political. Great secular causes, with smaller ones, are
guarded.’” Connick v. Myers, 461 U.S. 138, 147 (1983)
(quoting Mine Workers v. Illinois Bar Ass'n, 389 U.S. 217, 223
(1967)). While speech on matters of purely private concern may
have less constitutional value than expression on matters of
public concern, Dun & Bradstreet, Inc. v. Greenmoss Builders,
Inc., 472 U.S. 749, 760 (1985), it still is entitled to First
Amendment protection. Connick v. Myers, 461 U.S. at 147.
In sum, the Seventh Circuit’s holding that inmates have
no First Amendment rights to telephone access not only
-19-
disregards this Court’s prior pronouncements on prisoners’
rights, but also cannot be reconciled with the Court’s prior First
Amendment decisions in other contexts — decisions that all but
mandate recognition of inmates’ First Amendment rights to
telephone access. To borrow the Seventh Circuit’s own words
(at A49), it is “doctrinaire in the extreme” to suggest otherwise.
B. The Seventh Circuit Failed to Recognize That
the Single Provider/Collect-Call Only System
and Commission Policy Implicate the First
Amendment Rights of Not Only Inmates But
Also Their Families, Friends, and Loved
Ones
It is well-settled that restrictions on written
correspondence between inmates and the outside world
implicate the First Amendment rights not only of inmates but
also of those on the outside with whom they correspond.
Procunier v. Martinez, 416 U.S. at 409. This is so regardless
of “whether the nonprisoner correspondent is the author or
intended recipient of a particular letter, for the addressee as well
as the sender of direct personal correspondence derives from the
First and Fourteenth Amendments a protection against
unjustified governmental interference with the intended
communications.” Jd. at 408-09. Thus, the wife of an inmate
who receives only a censored letter from her incarcerated
husband “suffer[s] an abridgment of her interest in
communicating with him as plain as that which results from
censorship of her letter to him.” Jd. at 409. Her First
Amendment right in communicating with her husband exists
independently of, and is not derivative of, her husband’s First
Amendment interest in communicating with her. Id.
Similarly, the single provider/collect-call only system
and commission policy at issue here implicates the First
Amendment rights of both inmates and those whom they call.
-20-
Like a written letter, a telephone call is “a particular means of
communication in which the [First Amendment] interests of
both parties [to the communication] are inextricably
intertwined.” Id. Just as correspondence by letter “is effected
only when the letter is read by the addressee,” id. at 408, so too
a telephone call is effected only when the caller speaks with the
callee. While inmates initiate calls to the outside world
(because prison rules prohibit outsiders from calling them), the
telephone conversation is two-way, as both caller and callee
speak during the conversation. Thus, when prison authorities
impose a steep tax on inmates’ telephone calls, as they have
done here, not only inmates but also their families, friends, and
loved ones suffer abridgment of their First Amendment
interests. Indeed, because they pay the telephone bills, the
families, friends, and loved ones, typically bear the brunt of the
cost of the tax.
The single provider/collect-call only system and
commission policy violate not only families, friends, and loved
ones’ freedom of speech under the First Amendment but also
their fundamental right of familial association under both the
First and Fourteenth Amendments. The right to form and
maintain family relationships is, of course, “a fundamental
element of personal liberty” tied to the First Amendment’s
freedom of association. Roberts v. United States Jaycees, 468
U.S. 609, 618-20 (1984). Moreover, because “[i]t is through the
family that we inculcate and pass down many of our cherished
values.” Moore v. City of Cleveland, 431 U.S. 494, 503-04
(1977), the Fourteenth Amendment protects “[t]he integrity of
the family unit.” Stanley v. Illinois, 405 U.S. 645, 651 (1972).
It is now well-settled that, “[m]Jany important attributes” of the
family relationship survive incarceration. Turner v. Safley, 482
U.S. at 95. For this reason, the Court, in Turner, specifically
recognizing the importance of maintaining familial and marital
relationships between prisoners and their loved ones, struck
down a prison restriction on an inmate’s right to marry, and
stated that such relationships form the basis of this fundamental
-21-
constitutional right, which can be denied only after a faciual
inquiry is made. Id. at 94-96.
In rejecting petitioners’ challenge to the single
provider/collect-call only system and commission policy, the
Seventh Circuit ignored altogether the First and Fourteenth
Amendment rights of inmates’ families, friends, and loved ones.
Even though such individuals were the lead plaintiffs in this
litigation, and even though petitioners vigorously argued that
the commission policy abridged these plaintiffs’ constitutional
rights, there is not a single word in the decision below
acknowledging, let alone addressing, those rights.
_ Petitioners Have Stated a Valid Claim That
the Single Provider/Collect-Call Only System
and the Commission Policy Violate Their
First and Fourteenth Amendment Rights
On a motion to dismiss for failure to state a claim for
relief, the well-pleaded factual allegations of a complaint must
be accepted as true and construed in the light most favorable to
the plaintiff. Papasan v. Allain, 478 U.S. 265, 283 (1986).
Dismissal may be granted only if, taking the plaintiff's
averments as true and construing them most favorably to the
plaintiff, the district court nonetheless concludes that the
plaintiff has failed to state a claim on which relief may be
granted. Id.
Because it held that inmates have no First Amendment
rights to telephone access and because it ignored the First (and
Fourteenth) Amendment rights of their families, friends, and
loved ones, the Seventh Circuit never considered whether the
single provider/collect-call only system and commission policy
survive constitutional scrutiny. Under this Court’s established
analysis and that of circuit courts evaluating prison rules, it is
clear that the system and policy pose First Amendment
problems.
-22-
To begin, the constitutionality of respondents’ systems
is not governed by the deferential standard adopted by this
Court in Turner. In that case, the Court limited judicial scrutiny
of the “day-to-day” decisions of prison administrators and
official efforts to address “security problems,” 482 U.S. at 89,
and to prison rules regulating “the order and security of the
internal prison environment” in Thornburgh v. Abbott, 490 U.S.
at 407. Courts have expressly declined to apply Turner to
prison policies that do not implicate such concerns. Thus, in
Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989), the D.C.
Circuit applied traditional intermediate scrutiny to the District
of Columbia’s decision to incarcerate long-term female
offenders in federal prisons far from the city while similarly
situated male offenders were incarcerated nearby. Id. at 1453.
The D.C. Circuit reasoned that Turner was applicable only to
cases involving “regulations that govern the day-to-day
operation of prisons and that restrict the exercise of prisoners’
individual rights within prisons.” /d. at 1454. Because the
District’s policy was the result of “general budgetary and policy
choices” that “[did] not directly implicate either prison security
or control of inmate behavior, [or] go to the prison environment
and regime,” the Court concluded Turner was inapposite. Id.
Because respondents’ single provider/collect-call only system
reflects a purely “budgetary” choice that does not implicate
prison security, control of inmate behavior, or the internal
prison environment and regime, it is subject to the level of
scrutiny “traditionally applied” to challenges to fees that burden
First Amendment rights. Pitts, 866 F.2d at 1453. See also
Beauchamp v. Murphy, 37 F.3d 700, 704 (Ist Cir. 1994)
(refusing to apply Turner deference to inmates’ challenge to
correctional authorities’ denial of sentencing credit because
considerations of discipline and security are “greatly diluted
when the issue is the calculation of a sentence, a task performed
by an administrator with a pencil”); Jordan v. Gardner, 986
F.2d 1521, 1530 (9th Cir. 1993) (declining to apply Turner
standard to inmates’ Eighth Amendment challenge to cross-
gender clothed body searches).
-23-
Even under the Court’s Turner analysis, however, it is
amply clear that petitioners have stated a valid First Amendment
claim.® In Turner, this Court declared that “when a prison
regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate
penological interests.” 482 U.S. at 89. The Court identified the
following four factors as relevant to determining the
reasonableness of prison restrictions on inmate
communications: (1) “whether there is a valid, rational
connection between the prison regulation and the legitimate
governmental interest set forth to justify it;” (2) whether there
are alternative means of exercising the right that remain open to
prison inmates;” (3) the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and
the allocation of prison resources generally;” and (4) the
presence or absence of “ready alternatives” that would “fully
accommodate” inmates’ rights “at de minimis cost to valid
penological interests.” Jd. at 90-91. All four factors favor
petitioners in their challenge to the single provider/collect-call
only and commission policies.
First, petitioners have alleged that there is no “valid,
rational connection” between the commission policy and
legitimate penological objectives. 482 U.S. at 90. Indeed,
petitioners have alleged that there is no relation at all between
the policy and those objectives. The sole purpose of the
commission policy quite evidently is to raise revenues for the
State of Illinois and its counties by imposing an onerous tax on
inmates’ families, friends, and loved ones. While imposing
disciplinary surcharges on inmates who have committed prison
* The Turner analysis requires fact-finding and the creation of an
evidentiary record. See, e.g., Shimer v. Washington, 100 F.3d 506, 509-10
(7 Cir.-1996); Kikimura v. Turner, 28 F.3d 592, 599 (7 Cir. 1994). The
district court here utterly disregarded these requirements.
-24-
infractions may sometimes serve valid penological objectives,
Allen v. Cuomo, 100 F.3d 253, 261 (2d Cir. 1996), taxing their
families, friends and loved ones, who have never been convicted
of any crimes, does not.
Second, petitioners have alleged that for those among
them who due to age or disability cannot read or write letters or
travel from home to prison, there are no practicable “available
alternative means” of communication with their family
members, friends, and loved ones who are incarcerated in
distant prisons. Jd. at 89. Petitioners have also alleged that
telephone communications are the only available means of
communication in dealing with emergency matters requiring
immediate attention.
Third, petitioners have alleged that because the single
provider/collect-call only system is totally unrelated to
legitimate penological objectives, its removal to accommodate
petitioners’ First Amendment rights will have no impact
whatsoever on prison administration.’ Id. at 90.
Finally, petitioners have alleged “the existence of
obvious, éasy alternatives” to the present single
provider/collect-call only system with its steep surcharge on
inmate telephone calls — a debit system like that utilized by the
Federal Bureau of Prisons, for example — would meet all
legitimate security concerns. Id. at 90.
7 Indeed, little, if any, part of the commissions demanded by the
government agencies is used to defray the costs of the inmate
telephone service; those costs are paid for by the telephone companies.
Nor are the commissions used for the care and custody of prisoners
during their incarceration; instead the governmental agencies use their
commissions to augment their general budgets.
at.
CONCLUSION
For all of the foregoing reasons, petitioners respectfully
request that the Court grant this petition.
Dated: New York, New York
August 27, 2001
Respectfully Submitted,
Barbara J. Olshansky*
Robert T. Perry
Center for Constitutional Rights
666 Broadway, Seventh Floor
New York, New York 10012
(212) 614-6439
Stephen G. Seliger
Seliger, Elkin & Dolan, Ltd.
155 North Michigan Avenue
Chicago, Ilinois 60622
(312) 616-4244
* Counsel of Record for Petitioners
Al
APPENDIX A
SECOND AMENDED COMPLAINT
PRELIMINARY STATEMENT
This is a class action lawsuit brought, inter alia, by the family
members of Illinois prisoners and Cook, DuPage and Kane
County jail prisoners to enjoin, declare illegal, and to recoup
damages resulting from, several conspiracies between five
major telephone companies and the State of Ilinois and/or
Cook, DuPage and Kane County to create exclusive agreements
for inmate telephone service which require prisoners to make
only collect calls and result in the recipient of all inmate call
being charged excessive rates and surcharges. These agreements
provide for huge monetary "bonuses" to be paid by the
telephone companies to the State and the above mentioned
counties for obtaining the exclusive franchise for telephone
service at each prison or jail and a percentage of the telephone
revenues, up to 50%, generated by the inmate collect calls. The
agreements are in violation of the Sherman Act,
Telecommunications Act, the First, Fifth, and Fourteenth
Amendments and Article 1, 9 10 of the United States
Constitution, the Ilinois Constitution and the linois Antitrust
Act.
JURISDICTION
1. Jurisdiction for the constitutional claims is confirmed upon
this Court by 28 U.S.C. §§ 1331 and 1343(3) and (4) and under
42 U.S.C. § 1983.
2. Plaintiffs' claims for declaratory and injunctive relief are
authorized by 28 U.S.C. §§ 2201 and 2202 and Rule 57 of the
Federal Rules of Civil Procedure.
A2
3. Jurisdiction for plaintiffs’ antitrust claims are conferred under
the Sherman Act, 15 U.S.C. §§ | and 15.
4. Jurisdiction is also conferred under the Telecommunications
Act of 1966, 21 U.S.C. § 151 et seq. Section 207 permits
persons injured by any violation thereunder to file suit in the
United States District Court, and § 206 allows for the recovery
of damages and attorney fees.
5. Plaintiffs further invoke this Court's supplemental
jurisdiction, pursuant to 28 U.S.C. § 1367(a) over any and all
state constitutional and law claims so related to the claims
within the original jurisdiction of this Court that they form part
of the same case or controversy.
VENUE
6. Venue is proper for the United States District Court for the
Northern District of Illinois pursuant to 28 U.S.C. §§ 1391(a),
(b) and (c).
JURY DEMAND
7. Plaintiffs demand trial by jury in this action on each and
every one of their claims as alleged herein.
PARTIES
Families, Lawyers and Other Bill Payer Plaintiffs
8 Plaintiff, KATIE ARSBERRY, is a resident of Chicago,
[llinois. Her husband is presently incarcerated at the Stateville
correctional facility, operated by the defendant, STATE OF
ILLINOIS (hereafter, the State). At the present time, and at all
times, the only way plaintiff has been able to communicate by
telephone with her husband has been to accept collect calls
which are placed by him and billed to plaintiff by the telephone
A3
company which is a party to an exclusive dealing contract
governing telephone service by inmates made at the correctional
institution in which he is incarcerated. Plaintiff has been billed
by defendant, AMERITECH SERVICES, INC. (hereafter,
-Ameritech), for such calls.
9. Plaintiff, PHYLLIS BROOKS, is a resident of Cook
County. Her daughter is incarcerated at Logan Correctional
Center and at other times has been incarcerated at Dwight
Correctional Center. Ms. Brooks has custody of her daughter's
six-year-old daughter. At the present time, and at all times, the
only way plaintiff and her granddaughter have been able to
communicate with their daughter/mother has been to accept
collect calls placed by her incarcerated daughter and billed to
plaintiff by the defendant telephone company which is a party
to an exclusive dealing contract governing telephone service by
inmates at the correctional institution in which her daughter is
incarcerated. Plaintiff has been billed by defendants
CONSOLIDATED PUBLIC SERVICES, INC. (hereafter,
Consolidated), and Ameritech.
10. Plaintiff, JEANNE GAMMON, is a Chicago resident who
has had custody of the daughter of Raquel Loving, who was
incarcerated at Dwight, Dixon and Logan. In order for Ms.
Loving to communicate with her daughter, plaintiff had to
accept collect calls from the prison which had an exclusive
contract with one of the defendant phone companies. Plaintiff
was billed by defendant Consolidated.
11. Plaintiff, GUADALUPE GIRON, is a resident of Chicago,
Illinois. Her son is presently incarcerated at the correctional
institution at Joliet, operated by the State. At other times,
plaintiff's son was incarcerated at Pontiac and Pickneyville,
operated by the State and at Cook County Jail, operated by the
defendant, COUNTY OF COOK (hereafter, the County). At the
present time, and at all times, the only way plaintiff has been
able to communicate by telephone with her son has been to
A4
accept collect calls which are placed by him and billed to
plaintiff by the telephone company which is a party to an
exclusive dealing contract governing telephone service by
inmates made at the correctional institution in which her son is
incarcerated. Plaintiff has been billed by defendants,
Consolidated, MCI TELECOMMUNICATIONS
CORPORATION (hereafter, MCD, and AT&T for such calls.
12. Plaintiff, WILLIE MAE HAGGARD, is a resident of
Chicago, Illinois. Her daughter is presently incarcerated at the
Dwight correctional institution, operated by the State and has
been also incarcerated at other Ilinois correctional institutions
and Cook County Jail. At the present time, and at all times, the
only way plaintiff has been able to communicate by telephone
with her daughter has been to accept collect calls which are
placed by her daughter and billed to plaintiff by the telephone
company which is a party to an exclusive dealing contract
governing telephone service by inmates made at the correctional
institution in which her daughter is incarcerated. Plaintiff has
been billed by defendants, Consolidated, Ameritech and AT&T
for such calls.
13. Plaintiff, LINDA GOODMAN , is a resident of Round Lake
Park, Illinois. Her husband is presently incarcerated at
Stateville, and at other times has been incarcerated at Menard
and Pontiac correctional facilities, also operated by the State. At
the present time, and at all times, the only way plaintiff has been
able to communicate by telephone with her husband has been to
accept collect calls which are placed by him and billed to
plaintiff by the telephone company which is a party to an
exclusive dealing contract governing telephone service by
inmates made at the correctional institution in which he is
incarcerated. Plaintiff has been billed by defendants,
Consolidated, Ameritech and AT&T, for such calls.
A5
-14. Plaintiff, CAROLYN HAWTHORNE, is a resident of
Chicago; Illinois. Her two sons are presently incarcerated at
Galesberg and Danville, also operated by the State. At other
times, plaintiff's sons were incarcerated at the State correctional
facilities at Big Muddy River and Danville. At the present
time, and at all times, the only way plaintiff has been able to
communicate by telephone with her sons has been to accept
collect calls which are placed by them and billed to plaintiff by
the telephone company which is a party to an exclusive dealing
contract governing telephone service by inmates made at the
correctional institution in which her sons are incarcerated.
Plaintiff has been billed by defendants, Consolidated and MCI,
for such calls.
15. Plaintiff, SUSAN HAZELY, is a resident of Rockford,
Illinois. Her husband is presently incarcerated at Dixon, Illinois,
a correctional institution operated by the State. At other times,
plaintiff's husband was incarcerated at correctional institutions
in Big Muddy River and Danville, also operated by the State.
At the present time, and at all times, the only way plaintiff has
been able to communicate by telephone with her husband has
been to accept collect calls which are placed by him and billed
to plaintiff by the telephone company which is a party to an
exclusive dealing contract governing telephone service by
inmates made at the correctional institution in which her
husband is incarcerated. Plaintiff has been billed by defendants,
Consolidated and MCI, for such calls.
16. Plaintiff, MARY HIGH, is a resident of Rockford, Dlinois.
Her husband is presently incarcerated at Dixon, Ilinois, a
correctional institution operated by the State. At other times,
plaintiff's husband was incarcerated at the DuPage County Jail,
operated by the defendant, COUNTY OF DuPAGE. At the
present time, and at all times, the only way plaintiff has been
able to communicate by telephone with her husband has been to
accept collect calls which are placed by him and billed to
plaintiff by the telephone company which is a party to an
A6
exclusive dealing contract governing telephone service by
inmates made at the correctional institution in which her
husband is incarcerated. Plaintiff has been billed by defendants,
Consolidated and Ameritech, for such calls.
17. Plaintiff, AKUA HOPE, is a resident of New York, New
York. Her husband is presently incarcerated at Cook County
Jail. At other times, plaintiff's husband was incarcerated at the
State correctional institution at Menard. At the present time, and
at all times, the only way plaintiff has been able to communicate
by telephone with her husband has been to accept collect calls
which are placed by him and billed to plaintiff by the telephone
company which is a party to an exclusive dealing contract
governing telephone service by inmates made at the correctional
institution in which her husband is incarcerated. Plaintiff has
been billed by defendants, Consolidated and AT&T, for such
calls.
18. Plaintiff, ARLENE JOHNSON, is a resident of Buffalo
Grove, Illinois. Her husband is presently incarcerated at Menard
and at other times has been incarcerated at the correctional
institutions at Dixon, Stateville and Pontiac. At the present time,
and at all times, the only way plaintiff has been able to
communicate by telephone with her husband has been to accept
collect calls which are placed by him and billed to plaintiff by
the telephone company which is a party to an exclusive dealing
contract governing telephone service by inmates made at the
correctional institution in which her husband is incarcerated.
Plaintiff has been billed by defendants, Ameritech, Consolidated
and AT&T, for such calls.
19. Plaintiff, ANTHONY MALTESE, is a resident of Cicero,
Dlinois. His brother is presently incarcerated at Stateville and at
other times has been incarcerated at Pontiac and Illinois River,
also operated by the State. At the present time, and at all times,
the only way plaintiff has been able to communicate by
telephone with his brother has been to accept collect calls which
A7
are placed by him and billed to plaintiff by the telephone
company which is a party to an exclusive dealing contract
governing telephone service by inmates made at the correctional
institution in which his brother is incarcerated. Plaintiff has
been billed by defendant, AT & T, for such calls.
20. Plaintiff, SANDY MARKIEWICZ, is a resident of South
Elgin, Illinois. Her husband is presently incarcerated at Menard
and at other times has been incarcerated at Stateville, Pontiac
and the Kane County Jail, operated by defendant, COUNTY OF
KANE. At the present time, and at all times, the only way
plaintiff has been able to communicate by telephone with her
husband has been to accept collect calls which are placed by
him and billed to plaintiff by the telephone company which is a
party to an exclusive dealing contract governing telephone
service by inmates made at the correctional institution in which
her husband is incarcerated. Plaintiff has been billed by
defendants, Consolidated, AT&T and INVISION TELECOM,
for such calls.
21. Plaintiff, CATHERINE NYSTROM, is a resident of
Rockford, Illinois. Her son is presently incarcerated at the
Dixon correctional institution and at other times has been
incarcerated at the State correctional facilities at Shawnee and
Vienna. At the present time, and at all times, the only way
plaintiff has been able to communicate by telephone with her
son has been to accept collect calls which are placed by him and
billed to plaintiff by the telephone company which is a party to
an exclusive dealing contract governing telephone service by
inmates made at the correctional institution in which her
husband is incarcerated. Plaintiff has been billed by defendant,
Consolidated, for such calls.
22. Plaintiff, ANNIE ROSS, is a resident of Harvey, Illinois.
Her daughter is presently incarcerated at the Dwight
correctional institution operated by the State. At other times, her
daughter was incarcerated at Cook County Jail. At the present
A8
time, and at al] times, the only way plaintiff has been able to
communicate by telephone with her daughter has been to accept
collect calls which are placed by her and billed to plaintiff by
the telephone company which is a party to an exclusive dealing
contract governing telephone service by inmates made at the
correctional institution in which her daughter is incarcerated.
Plaintiff has been billed by defendants, Ameritech and AT&T,
for such calls.
23. Plaintiff: JAMILLAH FIELDS, is a resident of Chicago,
illinois. Her husband is presently incarcerated in Cook County
Jail and at other times has been incarcerated at the State
correctional facilities at Menard and Pontiac. At the present
time the only way plaintiff has been able to communicate by
telephone with her husband has been to accept collect calls
which are placed by him and billed to plaintiff by the telephone
company which is a party to an exclusive dealing contract
governing telephone service by inmates at Cook County Jail
24. Plaintiff, MIDWEST CENTER FOR JUSTICE, LTD.., is
a professional corporation located in Chicago providing legal
services and counseling to persons sentenced to death and
incarcerated in prisons in Ilinois and in other states.
PRISONER PLAINTIFFS
25. Plaintiffs, LONNIE ARSBERRY, MAYA HAGGARD,
JOHN HIGH, JOHN MARKIEWICZ, RODNEY NYSTROM,
NATHSON FIELDS, LARRY MACK and MARY WEEKLY
(hereafter referred to as "the prisoner plaintiffs"), are presently,
or have been at relevant times, incarcerated in correctional
institutions operated by the State or Cook, DuPage or Kane
counties. As a result of the exclusive agreements among the
defendants as alleged herein, these plaintiffs have been
subjected to an unreasonable burden on their fight to
communicate with their families, loved ones, lawyers and
prisoner assistance organizations.
Ya FD a ARS
Gti
Le SstG Es st ree EPMA? WOH fas SABA BA clas bo lee ab
. setae catia . -_ eee Oe L ee
eg pn eh pana naa tan snl nthe hea
A9
GOVERNMENTAL DEFENDANTS
26. Defendant, STATE OF ILLINOIS, through the Department
of Corrections, operates prisons and other correctional facilities
in the State of Illinois and, through the Department of Central
Management Services, is and has been a party to various
agreements with other private defendants herein pursuant to
which inmates make collect calls from the institutions in which
they are incarcerated.
27. Defendant, MICHAEL S. SCHWARTZ, is currently
Director of Central Management Services for the State of
Illinois, and as such is responsible for the contracts entered into
by the State of Mlinois and the various telephone company
defendants for the provision of telephone service at prisons
operated by the Illinois Department of Corrections. He is sued
in his individual capacity.
28. Defendant, DONALD N. SNYDER, is currently Director
of the Illinois Department of Corrections, and as such is
responsible for the contracts entered into by the State of Ilinois
and the various telephone company defendants for the provision
of telephone service at prisons operated by the Illinois
Department of Corrections. He is sued in his individual
Capacity.
29. Defendant, COUNTY OF COOK, operates a jail and other
correctional facilities in Cook County and is and has been a
_ party to various agreements with AT&T pursuant to which
inmates make collect calls from the institutions in which they
are incarcerated.
AlO
30. Defendant, COUNTY OF DuPAGE, operates a jail and
other correctional facilities in DuPage County and is and has
been a party to various agreements with Ameritech, pursuant to
which inmates make collect calls from the institutions in which
they are incarcerated.
31. Defendant, COUNTY OF KANE, operates a jail and other
correctional facilities in Kane County and is and has been a
party to various agreements with Invision Telecom, pursuant to
which inmates make collect calls from the institutions in which
they are incarcerated.
TELEPHONE COMPANY DEFENDANTS.
32. Defendant, AMERITECH SERVICES, INC., is a
corporation engaged in the business of providing telephone
service to persons in the State of Illinois and throughout the
United States. At various times, it was and continues to be a
part), to certain contracts with the State and DuPage County
under which it provides the exclusive service to enable inmates
to place telephone calls.
33. Defendant, AT&T, is acorporation engaged in the business
of providing telephone service to persons in the State of Illinois
and throughout the United States. At various times, it was and
continues to be a party to certain contracts with the State and the
County under which it provides the exclusive service to enable
inmates to place telephone calls.
34. Defendant, MCI TELECOMMUNICATIONS
CORPORATION, is a corporation engaged in the business of
providing telephone service to persons in the State of Illinois
and throughout the United States. At various times, it was and
continues to be a party to certain contracts with the State under
which it provides the exclusive service to enable inmates to
place telephone calls.
All
35. Defendant, CONSOLIDATED COMMUNICATIONS
PUBLIC SERVICES, LNC., is a corporation engaged in the
business of providing telephone service to persons in the State
of Illinois and throughout the United States. At various times,
it was and continues to be a part), to certain contracts with the
State under which it provides the exclusive service to enable
inmates to place telephone calls.
36. Defendant, INVISION TELECOM, is a corporation
engaged in the business of providing telephone service to
persons in the State of Illinois and throughout the United States.
At various times, it was and continues to be a party to certain
contracts with Kane County under which it provides the
exclusive service to enable inmates to place telephone calls.
CLASS ACTION ALLEGATIONS
37. Plaintiffs bring this case as a class action under Rule
23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure on
behalf of two classes. Class (1): Families, Lawyers and Other
Bill Payer Plaintiffs, defined as all persons, corporations and
organizations billed for telephone calls initiated by an inmate
confined to a jail, prison, detention center or other correctional
facility of the State and county defendants; Class (2): Prisoner
Plaintiffs, defined as all persons incarcerated in correctional
institutions operated by the State and county defendants. The
Case meets all the requirements of Rule 23: (a) each class is so
numerous that joinder is impracticable; (b) the issues of law and
fact applicable to the named plaintiffs present questions of law
and fact common to the class; (c) the claims of the plaintiffs are
typical of the claims of the class; and (d) the plaintiffs will
adequately and vigorously represent the interests of each class.
Each class also meets the requirements of (b)(2) and (b)(3).
Al2
STATEMENT OF FACTS
38. An inmate in acorrectional facility operated by the State or
counties of Cook, DuPage and Kane is prohibited from having
any telephone communication with persons outside the
institution other than by placing collect calls. He or she must
use the telephone service made available at the institution in
which he or she is incarcerated. The only way the inmate may
communicate by telephone with family, spouses, children,
friends, attorneys and prisoner assistance organizations is
through the collect call system established by the defendants.
39. All telephone services used by inmates are governed by
exclusive dealing agreements between the State or County
defendants on the one hand, and one of the defendant telephone
companies, on the other, under which the particular defendant
telephone company is given the exclusive right to operate the
entire collect call service at a particular institution for a specific
term. In return for this exclusive arrangement, the defendant
telephone company must pay the State or County a "signing
bonus” and commissions up to 50% of the revenues it collects
from parties it bills for the collect calls. On information and
belief, the commissions paid to the State and counties by these
telephone companies for inmate-initiated collect calls have
averaged more than $15 million a year. The amounts paid to the
State and counties are taken directly out of the revenues
generated from persons billed for accepting collect calls from
inmates.
40. As a result of these exclusive agreements and the
exorbitant commissions paid to the State or County, the rates
charged to a person accepting a collect call from an inmate are
among the highest, if not the highest, for any type of telephone
service available to the public, well in excess of charges
available to the public for like services. The families, lawyers
and other bill payer plaintiffs herein are also subjected to
Al3
excessive surcharges or connection fees which may then run
three to four times more than non-prison initiated calls.
41. In addition, neither the inmate nor the person billed may
utilize any service other than the exclusive collect-call service
and at the rates and terms established by such agreements, even
though there are numerous alternative options presently
available which would result in substantially lower charges,
such as "800" or "888"service, use of debit cards by inmates and
other services, such as "1-800-COLLECT."
42. Further, even though the person paying for a collect call
from an inmate has an ongoing contract with a telephone
company for other service and, under that contract, pays
substantially less for equivalent service, such service may not be
used. Thus, persons billed for calls from inmates cannot take
advantage of the numerous options available to all other
consumers using telephone service in the State of Ilinois.
43. In addition, persons accepting collect calls are not given
the same service or access to service that is provided to persons
receiving telephone calls from persons other than inmates. The
defendant telephone companies refuse to respond to complaints
or inquiries concerning problems raised by persons accepting
collect calls from inmates. When plaintiffs have attempted to
contact the telephone company concerning a disconnection or
other problem, they have been unable to receive any response to
their complaints or inquiries and there has been no adjustment
to their bills. The customer service departments of the defendant
telephone companies have stated on numerous occasions to
persons inquiring about problems during inmate telephone calls
that all such problems should be referred to the prison or jail.
Al4
44. Plaintiff Hazely has been subjected to excessive phone
bills for calls by her incarcerated husband by defendants,
Consolidated and MCI, and is prohibited from using any
substantially less costly alternative options, like an 800 number
or special rates from her own long distance phone service. Her
phone bills, resulting from calls from her incarcerated husband,
have averaged up to $300 a month, roughly 20% of her net
income. As a result of these phone charges, despite the fact that
she is gainfully employed with the Rockford Housing Authority,
- she had her phone disconnected for as long as eight months at
a time.
45. Plaintiff Hawthorne has been subjected to excessive phone
bills for calls by her incarcerated sons by defendants,
Consolidated and MCI, and is prohibited from using
substantially less costly phone call options like an 800 number
or special reduced rates from their own long distance phone
service. Her inmate phone bills which result from calls from her
two incarcerated sons average a minimum of $125 a month.
Despite the fact that she is gainfully employed as a CTA bus
driver she has had difficulty paying her phone bills and has had
her phone service disconnected.
46. Plaintiff Hope has been subjected to excessive phone bills
for the calls from her incarcerated husband by defendants,
Consolidated and AT&T, and is prohibited from using
substantially less costly phone call options like an 800 number
or her own long distance service. Her phone bills, resulting from
calls from her incarcerated husband, constitute 25% of her
income. At $400 a month, her calls cost more than her rent, and
as a result she has been unable to keep her account with the
phone company current. She has had to negotiate an installment
plan with the phone company under threat of having her phone
service disconnected and had to prevail upon her husband to
severely curtail his phone calls home.
Al5S
47. Plaintiff Maltese has been subjected to excessive phone
bills for calls from his incarcerated brother by defendant AT&T
and is prohibited from using any less costly alternative means
of phone service. Plaintiff's inmate phone bills average $150 per
month.
48. - Plaintiff Giron has been subjected to excessive rates for
calls from her incarcerated son by defendants, MCI and
Consolidated, and is prohibited from using any less costly
alternative means of phone service. Her inmate phone bills
average about $100 a month. She has paid over $3,500 in
inmate phone calls since 1996, and has had her service
wrongfully blocked and terminated.
49. Plaintiff Goodman's inmate phone bills now average nearly
$200 a month; she paid a total of $2,000 in 1998 for such
telephone calls. She cannot afford these amounts because she is
the sole means of support for her household and her child. In
addition, plaintiff has spent many hours of her time trying to get
the defendant telephone companies to refund connection
charges for phone calls that were cut-off as a result of poor
equipment and maintenance of the prison phone systems. When
her husband was incarcerated at Menard, defendant
Consolidated arbitrarily assigned plaintiff a credit limit of $100
a month for calls from her husband. When that credit limit was
reached, plaintiff's calls from her husband were automatically
blocked for the remainder of the month even though plaintiff
was willing and able to pay an amount greater than $100 for
such telephone calls. Although plaintiff was later able to have
her credit limit raised, her calls frequently were blocked before
the end of the month.
50. Plaintiff Arsberry's inmate phone bills average $200 a
month. Because she has two small children to care for, she
cannot work outside her home. She earns a small income by
providing day care in her own home, but it is not nearly enough
to cover the cost of the inmate-phone bills. These bills have
Al6
been financially crippling for her and at times her phone service
has been cut off because she cannot keep up with the bills.
51. Plaintiff Johnson's monthly inmate phone bills average
$150 a month. In addition, she estimates that a substantial
amount of these bills are for duplicate connection charges
caused by spontaneous disconnections. Despite her diligent
efforts, she has been unable to get any of her money refunded.
52. Plaintiff Nystrom has monthly inmate phone bills that have
run from a low of $130 a month to a high of $400 a month. This
has meant that she and her husband, whose work as an iron
worker is occasionally seasonal, have had to resort to juggling
their finances to keep their phone service from being
disconnected, and have as a result incurred steep late fees on
credit cards balances or personal loans, compounding their
financial concerns. Keeping her phone connected is of
especially great importance to plaintiff Nystrom as all of both
her and her husband's family are located out of state, and it is
their only means of staying touch with them.
53. Plaintiff Ross’ inmate phone bills averaged $600 a month
until she eventually fell behind on her payments, and her service
was cut off. Ms. Ross and her husband live on $520 a month he
receives from Social Security: Her phone remains disconnected
because she cannot pay off the remaining balance.
54. Plaintiff Brooks has been subjected to excessive phone
bills for the calls from her incarcerated daughter by defendants
Consolidated and Ameritech and is prohibited from using any
less costly alternative means of phone service. As a result of the
excessive phone costs, plaintiff Brooks had to instruct her |
daughter to make far less calls, thus severely limiting plaintiff
and her granddaughter from communicating with their
incarcerated daughter/mother.
Al7
55. Plaintiff Gammon was subjected to excessive phone
charges by defendant Consolidated in order to enable the
daughter of a prisoner to have communication with her mother.
Plaintiff was forced to pay these excessive rates even though
during part of the period she accepted such calls she was in a
management position at Ameritech and was entitled to
substantially reduced phone services. She was unable to take
advantage of the "Call-Me" card given to her by her employer
and was also unable to obtain an 800 number to pay for these
calls.
56. Plaintiff Haggard, disabled and receiving Social Security
Disability, is caring for the four children of her incarcerated
daughter on a total of under $900 a month. She has been unable
to communicate with any frequency with her daughter, nor have
her grandchildren spoken frequently with their mother. On many
occasions, plaintiff's telephone connection with her daughter has
been cut off, and she has been unable to obtain service to correct
this problem or a lowering of her telephone bill.
57. Plaintiff High has had to pay excessive phone rates and
Surcharges in order to communicate with her husband by
telephone. When her husband was incarcerated in the DuPage
County Jail, plaintiff lived just ten minutes from the jail and yet
received bills from defendant Ameritech averaging in excess of
50 cents a minute. Similarly, when her husband was transferred
to Dixon, she received exorbitant bills, including a connection
charge in excess of $2.50. Frequently, her telephone calls have
been cut off without explanation, requiring her husband to place
another call and for plaintiff thus to incur another connection
charge.
58. Plaintiff Markewicz has had to pay excessive telephone
bills and has frequently been disconnected in the middle of
telephone calls with her husband, who must then place another
call to her, requiring her to incur another expensive connection
charge. In addition, on some occasions when another party is
Al8
trying to call plaintiff through her “call waiting" service during
a telephone call with her husband, she is automatically
disconnected. If plaintiff were to respond to the "call waiting"
signal, she would be automatically disconnected from the call
with her husband. Frequently, in the middle of calls, recordings
interrupt a telephone call she is having with her husband.
59. Plaintiff Jamillah Fields has had to pay excessive phone
rates and surcharges in order to communicate with her husband
by telephone and has been prohibited from using other less
costly alternative means of phone service.
60. Plaintiff, Midwest Center for Justice, Ltd., has been
substantially impeded in its ability to adequately represent and
counsel its clients on death row because it is unable to utilize
any service other than the one imposed by the State. When the
plaintiff accepts calls from clients, it cannot allow those clients
to talk at any length on the telephone because of the high rates.
Approximately one year ago, the Center installed an "888"
number which would allow callers to make toll-free calls. A
representative of the plaintiff approached the Department of
Corrections to allow use of this "888" line for its clients and
although it was technically feasible, the Department refused.
61. Because of the exorbitant rates charged for telephone calls
from prisoners and lack of other options, prisoner assistance
organizations, lawyers and other persons and/or institutions in
the business of providing aid and service to prisoners have had
to incur a substantial expense in order to adequately provide aid
and service to prisoners and have been impeded in their work
and mission.
62. Since many of the incarcerated family members and loved
ones of the plaintiff class have limited writing skills, and since
they are imprisoned hundreds of miles from their families,
requiring substantial time and resources for visits, telephone
communication is the most viable way for communication
i
Al9
between families and their lived ones.
63. Communication with family members is a well-recognized
and accepted principle of rehabilitation for prisoners.
COUNT I
EQUAL PROTECTION CLAIMS AGAINST THE STATE,
SNYDER, SCHWARTZ, AMERITECH, AT&T, MCI AND
CONSOLIDATED BY FAMILIES, LAWYERS AND
BILL PAYER PLAINTIFFS
64. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
65. Defendant State, and its designated officials including
defendants Schwartz and Snyder, acting in concert and/or
conspiracy with the telephone company defendants, has
established discriminatory and excessive sur-charges and rates
for inmate phone calls, prohibited any alternative less costly
inmate calling options, and denied plaintiffs the same service
afforded other consumers of phone services in Ilinois.
66. Such policies and practices operate as a special
discriminatory tax or fee and an undue burden placed on persons
who receive phone calls from prisoners, thus constituting an
invidious and unreasonable classification in violation of the
equal protection clause of the Fifth and Fourteenth Amendments
of the United States Constitution.
A20
COUNT I
EQUAL PROTECTION CLAIMS AGAINST COOK,
DuPAGE AND KANE COUNTIES AND AT&T,
AMERITECH AND INVISION TELECOM BY FAMILIES,
LAWYERS AND BILL PAYER PLAINTIFFS
67. Plaintiffs reallege and incorporate herein paragraphs |
through 63 of this complaint.
68. Defendant Cook County acting in concert and/or
conspiracy with defendant AT&T, defendant DuPage County
acting in concert and/or conspiracy with defendant Ameritech,
and defendant Kane County acting in concert and/or conspiracy
with defendant Invision Telecom, have established
discriminatory and excessive surcharges and rates for inmate
phone calls, prohibited any alternative less costly inmate calling
options, and denied plaintiffs the same service afforded other
consumers of phone service in Illinois.
69. Such policies and practices operate as a special
discriminatory tax or fee and an undue burden on persons who
receive phone calls from prisoners not placed on other
consumers, thus constituting an invidious and unreasonable
classification in violation of the equal protection clause of the
Fifth and Fourteenth Amendments of the United States
Constitution.
COUNT I
EQUAL PROTECTION CLAIMS AGAINST THE STATE,
SNYDER, SCHWARTZ, AMERITECH, AT&T, MCI AND
CONSOLIDATED BY PRISONER PLAINTIFFS
~
A21
70. Plaintiffs reallege and incorporate herein paragraphs |
through 63 of this complaint.
71. Defendant State, and its designated officials including
defendants Schwartz and Snyder, acting in concert and/or
conspiracy with the telephone company defendants, has
established discriminatory and excessive sur-charges and rates
for inmate phone calls, prohibited any alternative less costly
inmate calling options, and denied plaintiffs the same service
afforded other consumers of phone services in Ilinois.
72. Such policies and practices place an undue burden on the
prisoner plaintiffs in communicating with the outside world,
thus constituting an invidious and unreasonable classification in
violation of their rights under the equal protection clause of the
Fifth and Fourteenth Amendments of the United States
Constitution.
COUNT IV
EQUAL PROTECTION CLAIMS AGAINST COOK,
DuPAGE AND KANE COUNTIES AND AT&T,
AMERITECH AND INVISION TELECOM
BY PRISONER PLAINTIFFS
73. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
74. Defendant Cook County acting in concert and/or conspiracy
with defendant AT&T, defendant DuPage County acting in
concert and/or conspiracy with defendant Ameritech, and
defendant Kane County acting in concert and/or conspiracy with
defendant Invision Telecom, have established discriminatory
and excessive surcharges and rates for inmate phone calls,
prohibited any alternative less costly inmate calling options, and
denied plaintiffs the same service afforded other consumers of
phone service in Illinois.
A22
75. Such policies and practices place an undue burden on the
prisoner plaintiffs in communicating with the outside world,
thus constituting an invidious and unreasonable classification in
violation of their rights under the equal protection clause of the
Fifth and Fourteenth Amendments of the United States
Constitution.
COUNT V
FIRST AMENDMENT CLAIMS AGAINST THE STATE,
SNYDER, SCHWARTZ, AMERITECH, AT&T, MCI AND
CONSOLIDATED BY FAMILIES, LAWYERS AND
OTHER BILL PAYER PLAINTIFFS
76. Plaintiffs reallege and incorporate herein paragraphs |
through 63 of this complaint.
77. Plaintiffs, as the wives, mothers, siblings and loved ones
of prisoners, and lawyers and prisoner-assistance organizations,
have a right under the First and Fourteenth Amendments to the
United States Constitution to communicate with persons
incarcerated by the State of Illinois. By virtue of the exclusive
agreements between the State and the defendant telephone
companies, plaintiffs must pay exorbitant rates to the defendants
to speak to a prisoner, are prohibited from using less expensive
alternative means of communicating, and are denied adequate
service by the defendants. The defendants, acting in concert or
in conspiracy, have placed undue and unreasonable burdens on
the plaintiffs’ rights of association and freedom of speech, in
violation of the First and Fourteenth Amendments of the United
States Constitution.
A23
COUNT VI
FIRST AMENDMENT CLAIMS AGAINST COOK,
DuPAGE AND KANE COUNTIES AND AT&T,
AMERITECH AND INVISION TELECOM BY FAMILIES,
LAWYERS AND BILL PAYER PLAINTIFFS
78. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
79. Plaintiffs, as the wives, mothers, siblings and loved ones
of prisoners, and lawyers and prisoner-assistance organizations,
have a right under the First and Fourteenth Amendments to the
United States Constitution to communicate with persons
incarcerated by Cook, DuPage and Kane Counties. By virtue of
the exclusive agreements between these counties and defendants
AT&T, Ameritech, and Invision Telecom, plaintiffs must pay
exorbitant rates to the defendants to speak to a prisoner, are
prohibited from using less expensive alternative means of
communicating, and are denied adequate service by the
defendants. The defendants, acting in concert or in conspiracy,
have placed undue and unreasonable burdens on the plaintiffs’
rights of association and freedom of speech, in violation of the
First and Fourteenth Amendments of the United States
Constitution.
UNT Vil
FIRST AMENDMENT CLAIMS AGAINST THE STATE,
SNYDER, SCHWARTZ, AMERITECH, AT&T, MCI AND
CONSOLIDATED BY PRISONER PLAINTIFFS
80. Plaintiffs reallege and incorporate herein paragraphs !
through 63 of this complaint.
A24
81. Prisoner plaintiffs have a fight under the First and
Fourteenth Amendments to the United States Constitution to
communicate with family, loved ones, lawyers and prisoner
organizations. By virtue of the exclusive agreements between
the State and the defendant telephone companies, prisoner
plaintiffs are severely restricted in their ability to so
communicate. The defendants, acting in concert or in
conspiracy, have placed undue and unreasonable burdens on
these plaintiffs’ rights of association and freedom of speech, in
violation of the First and Fourteenth Amendments of the United
States Constitution.
COUNT Vil
FIRST AMENDMENT CLAIMS AGAINST COOK,
DuPAGE AND KANE COUNTIES AND AT&T,
AMERITECH AND INVISION TELECOM BY PRISONER
: PLAINTIFFS
82. Plaintiffs reallege and incorporate herein paragraphs |
through 63 of this complaint. :
83. Prisoner plaintiffs have a right under the First and
Fourteenth Amendments to the United States Constitution to
communicate with family, loved ones, lawyers and prisoner
organizations. By virtue of the exclusive agreements between
the defendant counties and defendant telephone companies,
prisoner plaintiffs are severely restricted in their ability to so
communicate. The defendants, acting in concert or in
conspiracy, have placed undue and unreasonable burdens on
these plaintiffs’ rights of association and freedom of speech, in
violation of the First and Fourteenth Amendments of the United
States Constitution.
A25
COUNT IX
DUE PROCESS CLAIMS AGAINST THE STATE,
SNYDER, SCHWARTZ, AT&T, MCI, AMERITECH, AND
CONSOLIDATED BY FAMILIES, LAWYERS AND
BILL PAYER PLAINTIFFS
84. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
85. Defendant State, through its designated officials, acting in
concert and/or conspiracy with the defendant telephone
companies, have created exclusive agreements which impose on
plaintiffs exorbitant rates and prohibit less costly calling
alternatives for calls by prisoners from penal institutions.
86. Such agreements, and their effects, constitute a
confiscation of plaintiffs’ property and an unreasonable
deprivation of their rights of free speech and association, in
violation of procedural and substantive due process protections
under the Fifth and Fourteenth Amendments of the United
States Constitution.
COUNT X
DUE PROCESS CLAIMS AGAINST COOK, DuPAGE
AND KANE COUNTIES AND AT&T, AMERITECH AND
INVISION TELECOM BY FAMILIES, LAWYERS AND
BILL PAYER PLAINTIFFS
87. Plaintiff reallege and incorporate herein paragraphs 1
through 63 of this complaint.
RR CC —
A26
88. Defendant Cook, DuPage and Kane counties, through its
designated officials, acting in concert and/or conspiracy with the
defendant AT&T, Ameritech and Invision Telecom,
respectively, have created exclusive agreements which impose
on plaintiffs exorbitant rates and prohibit less costly calling
alternatives for calls by prisoners from penal institutions.
89. Such agreements, and their effects, constitute a
confiscation of plaintiffs’ property and an unreasonable
deprivation of their rights of free speech and association, in
violation of procedural and substantive due process protections
under the Fifth and Fourteenth Amendments of the United
States Constitution.
COUNT XI
DUE PROCESS CLAIMS AGAINST THE STATE,
SNYDER, SCHWARTZ AND AT&T, AMERITECH, MCI
AND CONSOLIDATED BY PRISONER PLAINTIFFS
90. Plaintiff reallege-and incorporate herein paragraphs |
through 63 of this complaint.
91. Defendant State, and its designated officials including
defendants Schwartz and Snyder, acting in concert and/or
conspiracy with the defendant telephone companies, have
created exclusive agreements which impose on plaintiffs
exorbitant rates and prohibit less costly calling alternatives for
calls by prisoners from penal institutions.
92. Regulations of the Illinois Department of Corrections
allowing for prisoner telephone calls creates a liberty interest
which the prisoner plaintiffs are being denied, in violation of
their rights to procedural and substantive due process under the
Fifth and Fourteenth Amendments to the United States
Constitution.
A27
COUNT XI
DUE PROCESS CLAIMS AGAINST COOK, DuPAGE
AND KANE COUNTIES AND AT&T, AMERITECH AND
INVISION TELECOM BY PRISONER PLAINTIFFS _
93. Plaintiff reallege and incorporate herein paragraphs 1
through 63 of this complaint.
94. Defendant Cook, DuPage and Kane counties, through its
designated officials, acting in concert and/or conspiracy with the
defendant AT&T, Ameritech and Invision Telecom,
respectively, have created exclusive agreements which impose
on plaintiffs exorbitant rates and prohibit less costly calling
alternatives for calls by prisoners from penal institutions.
95. Regulations of the defendant counties allowing for prisoner
telephone calls creates a liberty interest which the prisoner
plaintiffs are being denied, in violation of their rights to
procedural and substantive due process under the Fifth and
Fourteenth Amendments to the United States Constitution.
COUNT XII
CLAIM OF UNCONSTITUTIONAL IMPAIRMENT OF
CONTRACT AGAINST THE STATE, SNYDER,
SCHWARTZ, AT&T, MCI, AMERITECH AND
CONSOLIDATED BY FAMILIES, LAWYERS AND
BILL PAYER PLAINTIFFS
96. Plaintiffs reallege and incorporate herein Paragraphs ]
through 63 of this complaint.
97. The plaintiffs, at all relevant times, have had and continue
to have ongoing monthly contracts with telephone companies
which govern the general telephone service provided them,
cactus lla
A28
other than calls with inmates. These contracts provide for
substantially lower rates for collect calls than are imposed on
them by the defendants by virtue of their exclusive agreements
and also offer other services, options and means of using the
telephone which would result in substantially lower charges and
substantially improved service, if used for calls from inmates.
98. Defendant State, and its designated officials including
defendants Schwartz and Snyder, acting in concert and/or
conspiracy with the defendant telephone companies, has created
exclusive agreements which impose on plaintiffs exorbitant
rates and prohibit less costly alternatives for calls by prisoners
from penal institutions. The imposition of these restrictions and
requirements on the plaintiffs as a result of the illegal
agreements between the State and defendant telephone
companies prevents and prohibits plaintiffs from exercising
their rights under existing contracts they have for telephone
service. By virtue of these exclusive agreements, plaintiffs are
made forced customers of defendant telephone companies.
These restrictions and requirements constitute a substantial
impairment of plaintiffs’ contractual relationships with others,
in violation of Article I, § 10 of the United States Constitution.
COUNT XIV
CLAIM OF UNCONSTITUTIONAL IMPAIRMENT OF
CONTRACT AGAINST COOK, DuPAGE AND KANE
COUNTIES, AT&T, AMERITECH AND INVISION
TELECOM BY FAMILIES, LAWYERS AND
BILL PAYER PLAINTIFFS
99. Plaintiffs reallege and incorporate herein paragraphs |
through 63 of this complaint.
| 100. The plaintiffs, at all relevant times, have had and continue
| to have ongoing monthly contracts with telephone companies
which govern the general telephone service provided them,
Az9
other than calls with inmates. These contracts provide for
substantially lower rates for collect calls than are imposed on
them by the defendants by virtue of their exclusive agreements
and also offer other services, options and means of using the
telephone which would result in substantially lower charges and
substantially improved service, if used for calls from inmates.
101. Defendant County, through its designated officials, acting
in concert and/or conspiracy with the defendant AT&T, has
created exclusive agreements which impose on plaintiffs
exorbitant rates and prohibit less costly alternatives for calls by
prisoners from penal institutions. The imposition of these
restrictions and requirements on the plaintiffs as a result of the
illegal agreements between the County and defendant AT&T
prevents and prohibits plaintiffs from exercising their rights
under existing contracts they have for telephone service. By
virtue of these exclusive agreements, plaintiffs are made forced
customers of defendant telephone company. These restrictions
and requirements constitute a substantial impairment of
plaintiffs’ contractual relationships with others, in violation of
Article I, § 10 of the United States Constitution,
COUNT XV
SHERMAN ACT CLAIMS AGAINST ALL DEFENDANTS
- BY FAMILIES, LAWYERS AND
BILL PAYER PLAINTIFFS
102. Plaintiffs reallege and incorporatc herein by reference
paragraphs 1 through 63 of this complaint.
103. Defendants, State, and its designated officials including
defendants Schwartz and Snyder, Cook, DuPage and Kane
counties and telephone companies, acting jointly and in concert,
contracted, combined and/or conspired to enter into the
agreements regarding inmate telephone service.
a
A30
104. The foregoing conduct of these defendants has produced
adverse anticompetitive effects within the market for inmate-
initiated telephone calls in the State of Illinois and has
unreasonably restrained trade in interstate commerce.
105. By virtue of the forgoing conduct, defendants have violated
§ 1 of the Sherman Act, 15 U.S.C. § 1.
106. By virtue of the foregoing unlawful conduct, the plaintiffs
and class have suffered proximate injury, having paid
unjustified, exorbitant and unreasonable charges for telephone
calls received from inmates and have been prevented from
choosing other options of telephone service for use in receiving
telephone calls from inmates incarcerated in the State of Illinois.
OUNT XVI
CLAIMS UNDER THE TELECOMMUNICATIONS ACT
OF 1996 AGAINST TELEPHONE COMPANY
DEFENDANTS BY FAMILIES, LAWYERS AND
BILL PAYER PLAINTIFFS
107. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
108. Defendants, Ameritech, AT&T, MCI, Consolidated, and
Invision Telecom, are common carriers subject to the terms of
the Telecommunications Act.
109. Section 201(a) provides that "[iJt shall be the duty of
every common carrier engaged in interstate or foreign
communication by wire or radio to furnish such communication
service upon reasonable request therefor .... "Section 201(b)
requires that all “charges, practices, classifications and
regulations for and in connection with such communication
service shall be just and reasonable, and any such charge,
A31
practice, classification, or regulation that is unjust or
unreasonable is hereby declared to be unlawful...”
110. The charges, practices, classifications and regulations
which are imposed on plaintiffs as authorized by the illegal
agreements among the defendants herein are "unjust" and
"unreasonable," in violation of § 201(b) of the Act.
111. Section 202(a) makes it unlawful for any of the defendants
herein "to make any unjust or unreasonable discrimination in
charges, practices, classifications, regulations, facilities, or
services for or in connection with like communication service,
directly or indirectly, by any means or device, or to make or
give any undue or unreasonable preference or advantage to any
particular person, class or persons, or locality, or to subject any
particular person, class of persons, or locality to any undue or
unreasonable prejudice or disadvantage." The charges, practices,
classifications, regulations, facilities, or services which are
imposed on plaintiffs as authorized by the illegal agreements
among the defendants herein violate of § 202(a)of the Act.
COUNT XVI
CLAIMS UNDER ILLINOIS CONSTITUTION AGAINST
THE STATEBY FAMILIES, LAWYERS AND
BILL PAYER PLAINTIFFS
112. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
113. Plaintiffs allege four violations of the Hlinois Constitution
against the State:
A. The exorbitant charges imposed on the plaintiffs and the
plaintiff class are violations of plaintiffs’ nghts to due process
and equal protection under Article I, § 2 of the [linois
Constitution in that the persons selected by the State to pay such
A32
charges, i.e., plaintiffs and the plaintiff class, constitute an
unreasonable and arbitrary classification by the State, with
respect to the imposition of a tax, which places on the plaintiffs
burdens not shared by others.
B. Article IX, § 2 provides that in any law classifying the
subjects or objects of non-property taxes or fees, the classes
shall be reasonable and the subjects and objects within each
class shall be taxed uniformly. The excessive and exorbitant
charges to the plaintiffs and plaintiff class constitute a tax or fee
on this class of users of telephones, in violation of Article IX,
§ 2.
C. The requirements placed on plaintiffs to deal with the State
constitutes a substantial impairment of plaintiffs’ contractual
relationships with telephone companies of their choice and
grants to the defendant telephone companies special privileges
and immunities, in violation of Article I, § 16 of the Ilinois
Constitution.
D. The use of funds from the exorbitant fees charged for
collect calls by the governmental defendants for purposes
unrelated to telephone service for inmates constitutes an
unlawful tax and is an unlawful usurpation of power resting
with the legislative branch of government, in violation of
separation of powers clause, in the State of Hlinois, in Article I
§ 1.
COUNT XV
CLAIMS UNDER ILLINOIS CONSTITUTION AGAINST
COOK, DuPAGE AND KANE COUNTIES BY FAMILIES,
LAWYERS AND BILL PAYER PLAINTIFFS
114. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
IIe
A33
115. Plaintiffs allege four violations of the Ilinois Constitution
against Cook, DuPage and Kane counties:
A. The exorbitant charges imposed on the plaintiffs and the
plaintiff class are violations of plaintiffs’ rights to due process
and equal protection under Article I, § 2 of the IDlinois
Constitution in that the persons selected by the County to pay
such charges, i.e., plaintiffs and the plaintiff class, constitute an
unreasonable and arbitrary classification by the County, with
respect to the imposition of a tax, which places on the plaintiffs
burdens not shared by others.
B. Article IX, §, 2 provides that in any law classifying the
subjects or objects of non-property taxes or fees, the classes
shall be reasonable and the subjects and objects within each
class shall be taxed uniformly. The excessive and exorbitant
charges to the plaintiffs and plaintiff class constitute a tax or fee
on this class of users of telephones, in violation of Article IX, §
2.
C. The requirements placed on plaintiffs to deal with the
County constitutes a substantial impairment of plaintiffs’
contractual relationships with telephone companies of their
choice and grants to the defendant AT&T and Invision Telecom
special privileges and immunities, in violation of Article I, § 16
of the Dlinois Constitution.
D. The use of funds from the exorbitant fees charged for
collect calls by the governmental defendants for purposes
. unrelated to telephone service for inmates constitutes an
unlawful tax and is an unlawful usurpation of power resting
with the legislative branch of government, in violation of
separation of powers clause, in the State of Illinois, in Article 1,
§ 1.
A34
COUNT X
CLAIMS UNDER ILLINOIS CONSTITUTION AGAINST
THE STATE, SNYDER, SCHWARTZ BY PRISONER
PLAINTIFFS
116. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
117. The policies and practices alleged herein place an undue
burden on the prisoner plaintiffs in communicating with the
outside world, thus constituting an invidious and unreasonable
- classification in violation of their rights to equal protection. In
addition, regulations of the Illinois Department of Corrections
allowing for prisoner telephone calls creates a liberty interest
which the prisoner plaintiffs are being denied, in violation of
their fights to procedural and substantive due process.
118. The above constitutes violations of plaintiffs’ rights to due
process and equal protection of the laws under Article I, § 2 of
the Illinois Constitution.
COUNT XX
CLAIMS UNDER ILLINOIS CONSTITUTION AGAINST
COOK, DuPAGE AND KANE COUNTIES BY PRISONER
PLAINTIFFS
119. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
120. The policies and practices alleged herein place an undue
burden on the prisoner plaintiffs in communicating with the
outside world, thus constituting an invidious and unreasonable
classification in violation of their rights to equal protection. In
A35
addition, regulations of the defendant counties allowing for
prisoner telephone calls creates a liberty interest which the
prisoner plaintiffs are being denied, in violation of their rights
to procedural and substantive due process.
121. The above constitutes violations of piaintiffs' rights to due
process and equal protection of the laws under Article I, § 2 of
the Illinois Constitution.
COUNT XXI
CLAIMS UNDER ILLINOIS ANTITRUST ACT AGAINST
ALL DEFENDANTS BY FAMILIES, LAWYERS AND
OTItER BILL PAYER PLAINTIFFS
122. This count is brought pursuant to § 7 of the Illinois
Antitrust Act, which authorizes persons injured by any violation
of the Illinois Antitrust Act to bring suit for an injunction and
damages.
123. Plaintiffs reallege and incorporate herein paragraphs 1
through 63 of this complaint.
124. The State, Snyder, Schwartz, Cook, DuPage and Kane
counties and telephone company defendants, acting jointly and
in concert, contracted, combined and/or conspired to enter into
the agreements regarding inmate telephone service.
125. The foregoing conduct of the governmental and telephone
company defendants has produced adverse anticompetitive
effects within the market for inmate-initiated telephone calls in
the State of Illinois and has unreasonably restrained trade in this
State.
126. By virtue of the forgoing conduct, the governmental and
telephone company defendants have violated § 3 of the Ilinois
Antitrust Act, 740 ILCS 10/3.
A36
127. By virtue of the foregoing unlawful conduct, the
plaintiffs and class have suffered. proximate injury, having paid
unjustified, exorbitant and unreasonable charges for telephone
calls received from inmates and have been prevented from
choosing other options of telephone service for use in receiving
telephone calls from inmates incarcerated in the State of Illinois.
WHEREFORE, plaintiffs respectfully request that the Court:
A. Certify this case as a class action.
B. Issue a declaratory judgment that the agreements, acts
and practices alleged herein are illegal, as alleged in
each count.
So Enjoin the agreements, acts and practices found to be
illegal herein and order the defendants to provide to the
plaintiffs and members of the plaintiff class telephone
service which is legal and proper; and issue such other
injunctive relief that will remedy the violations of
plaintiffs’ rights herein and assure that telephone service
provided to inmates hereafter is just, lawful and
non-discriminatory.
D. Order the defendants to provide restitution to the
plaintiffs and members of the plaintiff class for all
losses they have incurred herein.
E. Award compensatory and punitive damages, and treble
damages under the Sherman Act to plaintiffs and
members of the plaintiff class.
r. Award plaintiffs and the plaintiff class their attorneys’
fees, costs and expenses. ~
7. Provide for such other relief as is just and proper.
Date: June 29, 1999 -
A37
APPENDIX B
Jn the Gnited States District Court,
ND. Fllinois, Eastern Division
99 C 2457
Katie Arsberry, et al.,
Plaintiffs-Appellants,
v.
State of Illinois, et al.,
Defendants-Appellees.
United States District Court,
N.D. Illinois,
Eastern Division.
Prisoners and those wishing to have telephone contact with
them sued state and telephone companies, challenging fairness
of collect call rates. On defendants’ motions to dismiss, the
District Court, Hibbler, J., held that issue was non- justiciable -
under the "filed rate" and "primary jurisdiction" doctrines.
Motions granted.
A38
ORDER
HIBBLER, District Judge.
Pending before the Court is defendants’ motion to dismiss the
action brought against them by Katie Arsberry and others. The
plaintiffs may be divided into two groups: (1) prisoners wishing
to contact people on the outside and (2) people on the outside
wishing to have telephone contact with prisoners. The
defendants may also be divided into two groups: (1)
governmental entities who are engaged in exclusive dealing
agreements with telephone companies and (2) the telephone
companies which provide long distance services for the
government entities’ prisons.
The causes of action arise under the First, Fifth and Fourteenth
Amendments of the Constitution; the Sherman Antitrust Act;
the Telecommunications Act of 1996; and various state causes
of action. The one issue that all of these causes of action have
in common is that they challenge the fairness, at some level, of
the telephone rates charged by the telephone companies to the
recipients of prison inmate-initiated collect telephone calls.
However, this is an issue which the Court finds to be non-
justiciable under the “filed rate" and "primary jurisdiction"
doctrines.
Pursuant to both the federal Telecommunications Act and the
Universal Telephone Service Protection Law of 1985, the
telephone company defendants file schedules or tariffs
governing the telecom services they offer. 47 U.S.C. § 203(a);
220 ILCS § 5/13-501. These schedules contain the rates, terms
and conditions of service, and cannot be varied by any other
contract, agreement or unilateral action of the parties. American
Telephone and Telegraph Co. v. Central Office Telephone, Inc.,
524 U.S. 214, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998). The
purpose of the tariff is to preserve to the FCC and ICC the
EE
A39
authority to determine the reasonableness of rates and to ensure
that the telephone companies charge only the rates filed with
those agencies. Arkansas Louisiana Gas Co. v. Hall, 453 U.S.
571, 577-78, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981); North
River Ins. Co. v. Jones, 275 Il.App.3d 175, 211 Ill.Dec. 604,
655 N.E.2d 987 (1995), appeal denied 164 Ill.2d 567, 214
fil.Dec. 323, 660 N.E.2d 1272.
The fact that Congress and the Illinois Legislature have vested
these responsibilities in the FCC and ICC, respectively, is
highly significant. First, the statutes clearly assign to the FCC
and ICC the authority to determine the reasonableness of
telecom rates. This is an area in which these dedicated agencies
are experts in important ways that the Court is not. Congress’
delegation of responsibility to the FCC is something that it was
entitled to do under the broad sweep of the Commerce Clause.
The Illinois Legislature was similarly authorized to enact the
Universal Telephone Service Protection Law. Since they have
done so, this Court is in no position to undermine their authority
by seizing the fact-finding role for itself.
The "filed rate" doctrine is not merely a random government
regulation; it is motivated by two "companion principles"--(1)
the need to prevent carriers from engaging in price
discrimination as between ratepayers (the "nondiscrimination
strand") and (2) the preservation of the exclusive role of federal
agencies in approving rates for telecommunications services that
are “reasonable” by keeping courts out of the rate-making
process (the "“nonjusticiability strand"), a function that the
federal regulatory agencies are more competent than the Court
to perform. Wegoland v. NYNEX Corp., 27 F.3d 17, 19 (2nd
Cir.1994); see also H.J. Inc. v. Northwestern Bell Tel. Co., 954
F.2d 485, 488 (8th Cir.1992). Other jurists have waxed
eloquent on the pros and cons of this doctrine, but the bottom
line is that the fairness of the rate as filed is up to the FCC and
ICC. In that determination, this Court has no role at all. There
are several compelling reasons which require the Court to defer
A40
to the FCC and ICC in this dispute. First, the Court does not
possess any experience in determining the fairness of telephone
rates. Second, Congress has laid down no guidelines for
judicial determination of these matters. Third, if the Court did
interfere, it would violate the separation of powers doctrine and
encroach upon the sovereignty of the Ilinois state government.
Fourth, the Court would run the risk of making a
pronouncement on an issue another government body has seized
primary jurisdiction over, a situation which could potentially
end up in two government bodies rendering inconsistent
opinions on the same issue. Given the pervasive interstate
commerce issues connected with the process for the
establishment of telephone rates, such a situation could be
disastrous.
To illustrate how any action taken by this Court could result in
a conflict one only need consider the possible remedies
available to the Court if it found an equal protection cause of
action. If the Court enjoined telephone companies~from
providing service at the filed rate it would then, in effect, be
forcing them to break their "contract" with the FCC and sua
sponte usurp the authority of the ICC. If, alternatively, the Court
decided to give the plaintiffs monetary compensation, the Court
would then be economically punishing the telephone companies
for obeying the FCC and ICC, which they are by law required
to do. Additionally, in order to set compensation, the Court
would be required to make its own determination of
"reasonable" as opposed to "excessive" telephone rates. This is
the function of the FCC and ICC in this very specialized.
regulated industry. Either remedy would interfere with both
bodies’ delegated powers and authorities. Although there are
some significant public policy issues which may dictate a need
for review of these rates, it is not the role or function of this
Court to effectuate public policy.
A4l
The foregoing is true for each and every cause of action
asserted. Therefore, the Court must GRANT the Motion to
Dismiss because this is a non-justiciable controversy and the
FCC and ICC have primary jurisdiction over the issue. It is
appropriate that this matter be referred to the FCC and ICC for
examination. All motions in the present case are terminated as
moot.
A42
APPENDIX C
In the Gnited States Court of Appeals
For the Seventh Circuit
No. 00-1777
Katie Arsberry, et al.,
Plaintiffs-Appellants,
v.
State of Illinois, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Northern
District of Dlinois, Eastern Division.
No. 99 C 2457--
William J. Hibbler, Judge.
Argued December 5, 2000--Decided March 19, 2001
A43
Before Posner, Easterbrook, and Evans,
Circuit Judges.
Posner, Circuit Judge. This is a suit by Ilinois prison and jail
inmates, inmates' family members (and other intimates of the
inmates), and a public-interest law firm that specializes in the
defense of inmates on death row in Illinois. Grounded in 42
U.S.C. sec. 1983, the Sherman Act, and Illinois state law, the
suit attacks the practice by which each prison and jail grant one
phone company the exclusive right to provide telephone service
to the inmates in return for 50 percent of the revenues generated
by the service. The suit claims that the rates for the service,
which are collect only and are contained in tariffs filed by the
phone companies with the Federal Communications
Commission and the Illinois Commerce Commission, are
exorbitant, being far higher than required to cover the costs
involved in providing phone service to inmates. The plaintiffs
seek damages and injunctive relief against the phone companies
and the state agencies and officials responsible for the
arrangements with the companies. The district court dismissed
the suit as beyond its jurisdiction by reason of the filed-rate and
primary-jurisdiction doctrines.
There are a number of jurisdictional bars or quasi-
jurisdictional bars (by the latter term we mean defenses that a
court can invoke even if the defendant has not done so, see, e.g.,
Higgins v. Mississippi, 217 F.3d 951 (7th Cir. 2000)) to various
pieces of this suit, quite apart from the ones identified by the
district court. The State of linois is not a person within the
meaning of section 1983. E.g., id. at 953; Will v. Michigan
Dept. of State Police, 491 U.S. 58, 66 (1989). The individual
defendants have qualified immunity from the damages claims,
given the novelty of the suit.
The law firm has no standing to sue because there is
no indication that it has suffered any detriment from the high
A44
price of its phone conversations with its clients; the cost of these
phone calls is, at least so far as its counsel is aware, an expense
that the firm is reimbursed for by the state or federal
government. And the inmate plaintiffs are barred from suing
because they have failed to exhaust their administrative
remedies, as required by the Prison Litigation Reform Act. 42
U.S.C. sec.1997e(a); Massey v. Wheeler, 221 F.3d 1030, 1034
(7th Cir. 2000); Perez v. Wisconsin Dept. of Corrections, 182
F.3d 532, 535-38 (7th Cir. 1999); Nyhuis v. Reno, 204 F.3d 65,
71 (Sth Cir. 2000); Alexander v. Hawk, 159 F.3d 1321, 1323-28
(11th Cir. 1998); Brown v. Toombs, 139 F.3d 1102, 1104 (6th
Cir. 1998) (per curiam). The plaintiffs say they have no such
remedies against exorbitant phone bills, but the cases we have
cited reject a "futility" exception to the requirement of
exhaustion. We have left open the possibility of an exception to
the exception for cases in which the only relief sought is
monetary and is beyond the power of the prison authorities to
give. Davis v. Streekstra, 227 F.3d 759 (7th Cir. 2000). That
possible exception is unavailable to these plaintiffs, because
they are seeking injunctive as well as monetary relief.
But since these various grounds do not dispose of all the
plaintiffs or all the defendants, we proceed to consider whether
the district court was right to think that the filed-rate and
primary-jurisdiction doctrines place the entire suit outside the
jurisdiction of the district court. The filed-rate doctrine, which
is based both on historical antipathy to rate setting by
courts,deemed a task they are inherently unsuited to perform
competently, and on a policy of forbidding price discrimination
by public utilities and common carriers, forbids a court to revise
a public utility's or (as here) common carrier's filed tariff, which
is to say the terms of sale that the carrier has filed with the
agency that regulates the carrier's service. AT&T Co. v. Central
Office Telephone, Inc., 524 U.S. 214, 223 (1998); Maislin
Industries, U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 126
(1990); Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577-
78 (1981); Cahnmann v. Sprint Corp., 133 F.3d 484, 487 (7th
A45
Cir. 1998); Wegoland Ltd. v. Nynex Corp., 27 F.3d 17 (2d Cir.
1994). A customer or competitor can challenge the tariff before
the agency itself, and if disappointed with the agency's response
can seek judicial review, 47 U.S.C. sec.sec. 204(a) (2)(C), 402,
but it cannot ask the court in any other type of suit (such as this
civil rights and antitrust suit) to invalidate or modify the tariff.
Nor can it seek damages based on the difference between the
actual tariff and a hypothetical lawful tariff. That would require
the court to determine the lawful tariff, and this is not regarded
as a proper judicial function. Wegoland Ltd. v. Nynex Corp.,
supra, 27 F.3d at 19-21.
The plaintiffs deny that they are challenging tariffs. They say
their objection is to the deals by which the correctional
authorities in Illinois have granted exclusive rights to telephone
companies in return for what the plaintiffs characterize as
kickbacks. They want to dissolve the deals in the hope that
competition among phone companies will lead companies to file
prison tariffs that have lower rates. They point out that a
conspiracy to file (or not file) particular tariffs is not insulated
by the filed-rate doctrine from attack under the antitrust laws or
other sources of independent rights, Square D Co. v. Niagara
Frontier Tariff Bureau, Inc., 476 U.S. 409, 422 and n. 28 (1986);
United States v. Radio Corp. of America, 358 U.S. 334, 346-47
(1959); Georgia v. Pennsylvania Railroad Co., 324 U.S. 439,
455 (1945); United States v. Pacific & Arctic Ry. & Navigation
Co., 228 U.S. 87, 104-05 (1913); City of Mishawaka v. Indiana
& Michigan Electric Co., 560 F.2d 1314, 1323 (7th Cir. 1977);
Town of Norwood v. New England Power Co., 202 F.3d 408,
419-20 (1st Cir. 2000); Barnes v. Arden Mayfair, Inc., 759 F.2d
676, 679 (9th Cir. 1985), provided that only injunctive relief is
sought. Square D Co. v. Niagara Frontier Tariff Bureau, Inc.,
supra; Keogh v. Chicago & Northwestern Ry:, 260 U.S. 156
(1922). Such an attack does not seek to invalidate any tariff, but
merely to create an environment in which the regulated firm is
more likely to file a tariff that contains terms more favorable to
customers. Whether what the plaintiffs are attacking here is
A46
aptly described as a “conspiracy” remains to be consicered;
provisionally, however, the suit is not barred by the filed-rate
doctrine.
The doctrine of primary jurisdiction is not a bar either. The
doctrine is really two doctrines. In its central and original form,
in which it is more illuminatingly described, however, as
"exclusive agency jurisdiction," it applies only when, in a suit
involving a regulated firm but not brought under the regulatory
statute itself, an issue arises that is within the exclusive original
jurisdiction of the regulatory agency to resolve, although it will
usually be subject to judicial review. United States v. Western
Pacific R.R.,352 U.S. 59, 64 (1956); Cahnmann v. Sprint Corp.,
supra, 133 F.3d at 487; Advance United Expressways, Inc. v.
- Eastman Kodak Co., 965 F.2d 1347, 1352-53 (7th Cir. 1992);
City of Peoria v. General Electric Cablevision Corp., 690 F.2d
116, 121-22 (7th Cir. 1982). When such an issue arises, the suit
must stop and the issue must be referred to the agency for
resolution. If the agency's resolution of the issue does not
dispose of the entire case, the case can resume subject to
judicial review of that resolution along whatever path governs |
review of the agency's decisions, whether back to the court in
which the original case is pending or, if the statute governing
review of the agency's decisions designates another court, to that
court. Id. at 122; 2 Kenneth Culp Davis & Richard J. Pierce, Jr.,
Administrative Law Treatise sec. 14.1, pp. 272-80 (3d ed.
1994).
If the plaintiffs in this case wanted to get a rate change, the
version of the doctrine that we have described would kick in;
but they do not, so it does not. Eventually they want a different
rate, of course, but at present all they are seeking is to clear the
decks--to dissolve an arrangement that is preventing the
telephone company defendants from competing to file tariffs
more advantageous to the inmates. We are oversimplifying,
because the complaint includes a claim under the Federal
Communications Act, 47 U.S. sec.sec. 151 et seq., that the
A47
phone companies charge unreasonably high rates and also
engage in rate discrimination. These claims are squarely within
the FCC's jurisdiction, but have been forfeited. They are not
mentioned in the plaintiffs’ opening briefs, and. are merely
brushed in their reply brief.
The doctrine of primary jurisdiction is sometimes defined quite
differently, as a doctrine that allows a court to refer an issue to
an agency that knows more about the issue, even if the agency
hasn't been given exclusive jurisdiction to decide it. So, for
example, we read in National Communications Ass'n, Inc. v.
AT&T Co., 46 F.3d 220, 222-23 (2d Cir. 1995), that “the
doctrine of primary jurisdiction allows a federal court to refer a
matter extending beyond the ‘conventional experiences of
judges’ or ‘falling within the realm of administrative discretion’
to an administrative agency with more specialized experience,
expertise, and insight." This definition obscures the core of the
doctrine, described earlier. Cases in which a court refers an
issue to an agency because of the agency's superior expertise,
such as the case just cited and American Automobile
Manufacturers Ass'n v. Massachusetts Dept. of Environmental
Protection, 163 F.3d 74, 81, 83 (1st Cir. 1998), rather than
because of the agency's jurisdiction, are not felicitously
described as cases of primary jurisdiction. They are akin to
those Burford abstention cases that like the granddaddy of the
line, Burford v. Sun Oil Co., 319 U.S. 315, 332-34 (1943),
itself, or the more recent New Orleans Public Service, Inc. v.
Council of City of New Orleans, 491 U.S. 350, 361 (1989),
concern arcane regulatory issues; or cases in which the court
solicits an amicus curiae brief from an interested agency; or
cases in which the court has in effect appointed the agency to be
a special master-- an analogy embraced in Lodge 1858,
American Federation of Government Employees v. Webb, 580
F.2d 496, 508-09 (D.C. Cir. 1978). In such cases, either court
and agency have concurrent jurisdiction to decide an issue, or
only the court has the power to decide it, and seeks merely the
agency's advice. (In the core of the doctrine, in contrast, the
\
A48
court has jurisdiction of the case, but the agency of the issue.)
That model doesn't fit this case either. The FCC has no authority
to approve a collusive arrangement among telephone
companies; nor is there any indication that it knows anything
that would be useful in evaluating the claim of collusion.
Prudently the defendants have not rested wholly on -
jurisdictional or procedural grounds for the dismissal of this
suit, but have argued that the plaintiffs’ claims lack merit. They
are right. Consider first the claim that exorbitant telephone rates
violate the First Amendment. It is true that communications the
content of which is protected by the First Amendment are often
made over the phone, but no one before these plaintiffs
supposed the telephone excise tax an infringement of free
speech. Saltzman v. United States, 516 F.2d 891 (9th Cir. 1975)
(per curiam). Communications protected by the amendment are
also frequently made by printing words on paper, yet no one
supposes that the consequence is to bring the corporate income
tax, when imposed on manufacturers of paper, within the
purview of the First Amendment, or even to forbid taxing those
manufacturers more heavily than manufacturers of products that
are less important as inputs into the production of
communications media. Any regulation direct or indirect of
communications can have an effect on the market in ideas and
opinions, but that possibility in itself does not raise a
constitutional issue. Minneapolis Star & Tribune Co. v.
Minnesota Commissioner of Revenue, 460 U.S. 575, 581-83
(1983); BellSouth Corp. v. F.C.C., 144 F.3d 58, 69 (D.C. Cir.
1998). Otherwise the entire tax and regulatory operations of
American government would be brought under the rule of the
First Amendment.
There is no suggestion that the scheme of which the plaintiffs
complain is motivated by a desire to limit free speech, as in
Grosjean v. American Press Co., 297 U.S. 233 (1936); the
plaintiffs themselves contend that it is motivated by pure greed;
and of course the telephone rates of which they complain are
independent of the protected or unprotected character of the
A49
phone calls being charged for. We note parenthetically that
"greed" doesn't seem the right characterization either,
considering that prisons are costly to build, maintain, and
operate, and that the residents are not charged for their room and
board. By what combination of taxes and user charges the state
covers the expense of prisons is hardly an issue for the federal
courts to resolve.
The case is a bit closer to Minneapolis Star, which invalidated
a special tax arbitrarily imposed on newspapers. Yet to extend
that decision to the telephone excise tax, or to the "tax" imposed
by the contracts attacked in this case, would overlook a vital
distinction. The entire content of newspapers, in contrast to
telephone calls, is protected by the First Amendment, and so
there was in the Minneapolis Star case a gratuitous and
potentially substantial, even if not deliberate, impairment of the
interests that the amendment is designed to protect. Although
the telephone can be used to convey communications that are
protected by the First Amendment, that it is not its primary use
and it is extremely rare for inmates and their callers to use the
telephone for this purpose. Not to allow them access to a
telephone might be questionable on other grounds, but to
suppose that it would infringe the First Amendment would be
doctrinaire in the extreme, United States v. Footman, 215 F.3d
145, 155 (1st Cir. 2000), though the Ninth Circuit disagrees.
Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000) (per
curiaiy. The telephone, and the nation's telecommunications
infrastructure more generally, are more commonly used for First
Amendment purposes than prison phones are, but the federal
courts do not use that fact as the excuse to bring the taxation
and regulation of telecommunications under comprehensive
judicial surveillance in the name of free speech.
The plaintiffs also argue that the kickback scheme, as they
regard it, impairs contracts to which the plaintiffs are parties.
No contracts are specified; and in any event a tax, which is what
the allegedly exorbitant component of the questioned telephone
a
A50
rates functionally is, is not an impairment of contracts within the
meaning of the Constitution. Barwise v. Sheppard, 299 U.S. 33,
40 (1936); Kehrer v. Stewart, 197 U.S. 60, 70 (1905); North
Missouri R.R. v. Maguire, 87 U.S. 46, 61 (1873). The cases that
establish this proposition are old, but that is only because it's
been a long time since anyone thought to make the argument.
And the contention that by charging a high price for phone calls
the defendants have taken the plaintiffs’ property and must pay
just compensation is downright absurd.
There is a little more substance to the argument that the
scheme violates the equal protection and due process clauses of
the Fourteenth Amendment. We must take the facts pleaded in
the complaint as true, and they are that the very high price
charged anyone who wants to talk to an inmate over the phone
is greatly in excess of any additional cost to the phone
companies or the prisons and jails of allowing inmates to make
collect calls. Treating what we have called the exorbitant
component of the prison inmate tariffs as a tax, we may appear
to have a conventional case in which a class of taxpayers
complains about a grossly discriminatory tax rate. Allegheny
Pittsburgh Coal Co. v. County Commission, 488 U.S. 336, 345
(1989); Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869,
875 (1985); Rinaldi v. Yeager, 384 U.S. 305, 308 (1966);
Wallers v. United States, 847 F.2d .1279, 1282 (7th Cir. 1988).
But here the fact that it is not a tax but a tariffed rate bites. A
claim of discriminatory tariffed telephone rates is precisely the
kind of claim that is within the primary jurisdiction of the
telephone regulators. The plaintiffs are asking us to compare the
rates on inmate calls with rates on comparable calls of other
persons; that is what we cannot do but the regulatory agencies
can. . |
-
A51
The plaintiffs argue that inmates and their families have an
interest encompassed by the concept of "liberty" in the due
process clause and that the defendants (both the agencies and
officials directly subject to the Fourteenth Amendment and the
telephone companies, which are liable under section 1983 as
their coconspirators, Adickes v. S.H. Kress & Co., 398 U.S.
144, 152 (1970); Tarpley v. Keistler, 188 F.3d 788, 791-92 (7th
Cir. 1999)) have arbitrarily deprived them of that interest by
preventing competition for inmate phone service. It is
conceivable (no stronger statement is possible in the current
state of the case law) that the constitutional concept of liberty
may encompass.a limited right to make or receive prison visits
involving family members, Burgess v. Lowery, 201 F.3d 942,
947 (7th Cir. 2000); Froehlich v. Wisconsin, 196 F.3d 800, 801-
02 (7th Cir. 1999); Mayo v. Lane, 867 F.2d 374, 375-76 (7th
Cir. 1989), and a telephone call is an electronic visit and may be
the only form of visit that is feasible if the family lives far from
the inmate's prison. But even if this is so, which we needn't
decide, the plaintiffs cannot get anywhere with their due process
claim. The claim has no procedural dimension; there is no
Suggestion that the defendants have denied them their due
process right to challenge the inmate telephone rates in the
regulatory agencies. The claim is substantive, is that the
defendants have unreasonably curtailed the liberty of being
visited and visiting by denying reasonably priced phone service.
And as a substantive claim it cannot fly. It is no different from —
claiming that a state that raised the gasoline tax and by doing so
increased the cost to the plaintiffs of traveling to visit their
inmate relatives would be violating the Constitution.
We are also unimpressed by the plaintiffs’ antitrust claim.
Were they arguing that the defendant phone companies had
gotten together to divide the inmate phone market, using state
officials as their cat's paws, the defendants, in order to avoid
liability, would have to show that the initiative for and control
over the scheme resided with the officials, acting in furtherance .
of a state policy of limiting competition. Southern Motor
AS2
Carriers Rate Conference, Inc. v. United States, 471 U.S. 48,
56-57 (1985); California Retail Liquor Dealers Ass'n v. Midcal
Aluminum, Inc., 445 U.S. 97, 105-06 (1980); Hardy v. City
Optical Inc., 39 F.3d 765, 768 (7th Cir. 1994): Massachusetts
Food Ass'n v. Massachusetts Alcoholic Beverages Control
Comm'n, 197 F.3d 560, 563-64 (1* Cir. 1999). There is a bare
hint of horizontal agreement--the sort of thing that the Georgia
v. Pennsylvania line of cases that we cited earlier holds are not
protected from antitrust attack by the filed-rate doctrine--in the
allegation of the complaint that the telephone company
defendants and the other defendants are acting "jointly and in
concert." But the entire thrust of the plaintiffs' argument is that
the prisons are principals, not tools; remember, they are said to
be motivated by greed, but greed that is institutional rather than
personal. Far from being mere agents of the phone companies,
the prisons are in the driver's seat, because it is they who control
access to the literally captive market constituted by the inmates.
Indeed the plaintiffs’ real argument has nothing to do with any
horizontal conspiracy; it is rather that a monopolist, namely the
State of Illinois (and its subdivisions), exercising as it does an
iron control over access to the inmate market, has rented pieces
of the market to different phone companies, in much the same
way that an airport will charge a high fee to concessionaires
eager to sell to the captive market represented by the airline
passengers who perforce spend time in the airport. Cf. Elliott v.
United Center, 126 F.3d 1003 (7th Cir. 1997). The
concessionaires will pass on much of the fee to their customers,
who will thus pay a higher than competitive price. States and
other public agencies do not violate the antitrust laws by
charging fees or taxes that exploit the monopoly of force that is
the definition of government. They have to get revenue
somehow, and the "somehow" is not the business of the federal
courts unless a specific federal right is infringed. Nor do the
persons with whom the states contract violate the antitrust laws
by becoming state concessionaires, provided those persons do
not collude among themselves or engage in other
A53
anticompetitive behavior, of which charging high prices as a
State concessionaire is not a recognized species.
Insofar as the plaintiffs' concern is with the purely vertical
arrangement between each defendant telephone company and a
particular prison or jail, the filed-rate doctrine pops back in as
a jurisdictional bar. The vertical agreement is effectively the
tariff, that is, the contract between the provider of the regulated
service (the phone company) and the customer. Technically, the
inmates are the customers; but realistically it is the prisons and
jails. The plaintiffs don't want to clear away an obstacle to a
voluntarily negotiated lower tariff; they want a lower tariff.
The dismissal of the plaintiffs' federal claims must be affirmed,
though on the merits rather than (with the exception of the equal
protection claim, which is within the scope of the doctrine of
primary jurisdiction in its core sense of exclusive agency
jurisdiction to decide an issue, and the vertical dimension of the
antitrust claim, which is barred by the filed-rate doctrine) on
jurisdictional grounds. Since all the plaintiffs' federal claims
have fallen out well before trial and their state claims are not
even mentioned in the district court's opinion, we direct that
court to relinquish jurisdiction over the state claims. 28 U.S.C.
sec. 1367(c)(3). Doubtless the court would have done that on its
own had it not thought the entire case outside its jurisdiction,
which is why it had no occasion even to mention those claims.
Modified and Affirmed.
A54
APPENDIX D
In the United States Court of Appeals
For the Seventh Circuit
May 29, 2001
Before
Hon. Richard A. Posner, Circuit Judge
Hon. Frank H. Easterbrook, Circuit Judge
Hon. Terence T. Evans, Circuit Judge
No. 00-1777
Katie Arsberry, Phyllis Appeal from the United
Brooks, Jeanne Gammon, States District Court of the
et al., Northern District of
Dlinois, Eastern Division
Plaintiffs-Appellants,
No. 99 C 2457
v.
William J. Hibbler,
State of Illinois, County of Judge
Cook, Ameritech Services,
Incorporated, et al.,
Defendants-Appellees.
A55
ORDER
On consideration of the petition for rehearing and petition for
rehearing en banc filed on April 2, 2001 by plaintiffs-appellants
arid on May 7, 2001 defendants-appellees filed an answer. All
the judges on the original panel have voted to deny the petition,
and none of the active judges has requested a vote on the
petition for rehearing en banc. The petition is therefore
DENIED.
* Hon. Ilana Diamond Rovner and Hon. Ann Claire Williams
did not participate in the consideration of the petition.
APPENDIX E
Gnited States Constitution
Amendment I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a
redress of grievances.
Amendment XIV, Section 1
Section 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside. No state shall make
or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
A57
APPENDIX F
42 U.S.C. § 1983 Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory
relief was unavailable. For the purposes of this section, any Act
of Congress applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of Columbia.
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.