# Petition for Writ of Certiorari — Arsberry v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2373%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 534 U.S. 1062 ## 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, & 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2373%3A1. Public record. Not legal advice.