IN RE: Nathan E. ELI on Habeas Corpus.

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Court of Appeal, First District, Division 4, California.

IN RE: Nathan E. ELI on Habeas Corpus. In re John VAN GELDERN on Habeas Corpus.

Cr. 9270, 9320.

Decided: March 01, 1971

Nathan E. Eli, in pro. per. John Van Geldern, in pro. per. Thomas C. Lynch, Atty. Gen., John T. Murphy, George R. Nock, Derald E. Granberg, Deputy Attys. Gen., San Francisco, for the People. Paul N. Halvonik, Charles C. Marson, American Civil Liberties Union of Northern Cal., San Francisco, amicus curiae in support of contentions of petitioner Van Geldern.

Petitioners Nathan E. Eli, an inmate held at San Quentin Prison under sentence of death, and John Van Geldern, an inmate at Folsom Prison, seek habeas corpus, challenging a regulation of the Director of Corrections governing the sale of inmateproduced manuscripts. The petitions were filed with the Supreme Court; that court issued orders to show cause, returnable before us.

The present petitions originally attacked three rules issued by the Director of Corrections. Rule D2502 prohibited dissemination of manuscripts criticizing governmental agencies, and Rule D2503 provided that condemned prisoners were not permitted to prepare or submit any manuscript for sale or publication. Both regulations have been amended; the restraints formerly based on those regulations have been lifted, and the petitions are moot as to them. But both petitions also attack Rule D2505; that rule is still in effect, as follows:

‘To defray handling costs a percentage established by the Director will be deducted from the payment received for each manuscript and deposited in the Inmate Welfare Fund.1 The percentage will be the same as that established for paintings [25 percent]. Prior to the submission of a manuscript for publication, the inmate will sign an agreement authorizing such deduction.’ Petitioners contend that the 25 percent levy is unlawful.

A prisoner does not enjoy an inherent constitutional right, while still in prison, to publish his writings. (Stroud v. Swope (1951) 9 Cir., 187 F.2d 850, cert. den. 342 U.S. 829, 72 S.Ct. 53, 96 L.Ed. 627.) The Legislature has general powers to deprive a prisoner of his civil rights and to provide for restoration thereof. (California Highway Com. v. Indus. Acc. Com. (1926) 200 Cal. 44, 48, 251 P. 808.) Such power extends specifically to the control of efforts of prisoners to secure publication of their writings. Maas v. United States (1966) 125 U.S.App.D.C. 251, 371 F.2d 348.) Penal Code, section 2600 formerly provided that a judgment of imprisonment in a state prison suspends all civil rights subject to the power of the Adult Authority to restore certain rights. Even so, it had been held that the state has no property rights in manuscripts written by inmates. (Davis v. Superior Court (1959) 175 Cal.App.2d 8, 18–19, 345 P.2d 513.) In 1968, section 2600 was amended to provide: ‘This section shall be construed so as not to deprive such person of the following civil rights * * * (3) To own all written material produced by such person during the period of confinement.’ (Stats.1968, ch. 1402, § 1.) Section 2603 provides that the three previous sections (including section 2600) are not to be construed to render inmates incapable of ‘making and acknowledging, a sale or conveyance of property.’ Manuscripts are ‘property’ within the terms of section 2603. (Davis v. Superior Court, supra, at p. 18, 345 P.2d at p. 523.)

Although California prisoners therefore own manuscripts created by them while in custody, and are not incompetent to make contracts for the sale thereof, it does not follow that the Director of Corrections cannot impose any restrictions upon the exercise of such powers. The inmate's ownership interest, recognized by the statute, may be absolute in the sense that it is not qualified by a property right held by the state or by any other person. Yet questions concerning the supervisory and administrative powers of the Director of Corrections remain to be answered. It has been held that although section 2600 is a prison ‘bill of rights' setting forth certain fundamental guarantees2 retained by prisoners, it is not a ‘straitjacket limiting the ability of prison authorities to deal with institutional realities.’ (In re Harrell, supra, 2 Cal.3d 675, 698, 87 Cal.Rptr. 504, 470 P.2d 640.) Harrell established that reasonable restrictions which do not substantially infringe on the enjoyment of these guarantees are not prohibited by section 2600. Imposition of a fee to cover administrative expenses incurred in the manuscript program does not detract from the prisoner's ownership of his manuscript; the state is not, by seeking reimbursement for costs, claiming partial ownership rights. It has already been held reasonable and lawful to impose a 10 percent charge on the purchase of soft-cover books (also a right conferred by section 2600) ‘to defray added expenses.’ (In re van Geldern (1971), Cal.App., 92 Cal.Rptr. 592 [filed Jan. 28, 1971].) We conclude that the regulation in question does not violate section 2600.

Although there is no express statutory authorization for the director to seek reimbursement for state costs involved in processing prisoners' manuscripts, Penal Code, section 5054 states, without limitation or qualification, that ‘responsibility for the care, custody, treatment, training, discipline and employment of persons confined [in state prisons] are vested in the director [of correction].’ Penal Code, section 5058 provides, in equally sweeping terms, that ‘the director may prescribe rules and regulations for the administration of the prisons, and may change them at his pleasure.’ The broad powers of the director are subject to the limitation that his regulations must not be arbitrary or unreasonable. (In re Ferguson (1961) 55 Cal.2d 663, 12 Cal.Rptr. 753, 361 P.2d 417.)

The reasonableness and propriety of requiring reimbursement for state costs incurred in special programs has been recognized. For example, Penal Code, section 2690 authorizes the Director of Corrections to remove an inmate from the prison to the community for rehabilitative purposes prior to release and to seek reimbursement from the inmate for expenses thereby incurred. Similarly, where state material is used in the manufacture and sale of articles of handiwork, the proceeds of the sale must be deposited in the Inmate Welfare Fund; where no state material has been used, ‘the director may provide that all or a part of the sale price * * * be deposited to the account of the prisoner manufacturing the article.’ (Pen.Code, § 2877; italics added.) Pursuant to this statute, prison regulations provide that a percentage of the sale price from handicrafts shall be deducted and placed in the Inmate Welfare Fund to defray the costs of operation. A prisoner's literary efforts may be likened to other works of craftsmanship or art; a manuscript is a product of the writer's labor and skill just as a painting or a piece of sculpture represents an investment of time and skill by the artist. Like the handicraft program, production and marketing of a manuscript by a prisoner involves the use of state resources. Not only is housing and subsistence of the writer involved, but prison staff time is consumed in the handling and surveillance of the writer's outside marketing communications. Hence, we conclude that the imposition of a fee to recover these costs is a reasonable and proper exercise of the director's administrative powers. It is true that the levy does not go direcently to the state, but (as in van Geldern, supra) to the Inmate Welfare Fund which was established ‘for the benefit, education, and welfare of inmates * * *.’ (Pen.Code, § 5006.) But those purposes are state purposes, reasonably to the state costs which the regulation attempts partially to recover.

The amount of the fee must, of course, also be reasonable. Retitioners have advanced no valid basis for us to question the reasonableness of the specific amount of the charge specified by the director. But the amount (25 percent) is not discriminatory as compared with that applied to other arts and crafts sales. It is clear also that there would be no valid basis for determining in advance which manuscripts would have commercial value and which would not, while costs are incurred as to all writers and all manuscripts, marketable or not. In view of these considerations, we cannot say that the 25 percent charge is unreasonable or excessive.

The orders to show cause are discharged, and the petitions are denied.


1.  The Inmate Welfare Fund is a fund in the State Treasury for the deposit of money to be ‘used for the benefit, education, and welfare of inmates * * *. The moneys in said fund shall constitute a trust held * * * for the benefit and welfare * * * of all of the inmates * * * under the jurisdiction of the Department of Corrections.’ (Pen.Code, § 5006.)

2.  Those guarantees are, generally speaking, (1) to inherit property, (2) to correspond confidentially with attorneys and public officials, (3) to own written material produced during imprisonment, and (4) to purchase, receive, and read published writings. (In re Harrell (1970) 2 Cal.3d 675, 702, 87 Cal.Rptr. 504, 470 P.2d 640.)

CHRISTIAN, Associate Justice.

DEVINE. P. J., and PATTIGAN, J., concur.