IN RE: William BRANDT on Habeas Corpus.

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Court of Appeal, First District, Division 2, California.

IN RE: William BRANDT on Habeas Corpus.

Cr. 17740.

Decided: March 29, 1978

Michael R. Snedeker, Paul W. Comiskey, Prisoners Union Law Office, San Francisco, for petitioner. Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, John T. Murphy, Deputy Attys. Gen., San Francisco, for respondent.

Petitioner, a parolee, seeks review by habeas corpus of an administrative denial of his request for permission to correspond with inmates confined in the Correctional Training Facility of the Department of Corrections at Soledad, California, in his capacity as an “official of the Prisoners' Union.” His petition for writ of habeas corpus was denied in the superior court and in this court. However, the Supreme Court of California ordered the Director of Corrections to show cause before this court why the relief prayed for should not be granted.1

Subdivision (o ) of section 3133, title 15, of the California Administrative Code (hereafter rule 3133(o )), is a regulation of statewide application adopted by respondent Director of Corrections pursuant to power conferred upon him by statute. (Pen.Code, s 5058.) Rule 3133(o ) provides as follows: “A person's former inmate status will not in itself preclude approval to correspond with an inmate except as follows: Prior approval of the warden or superintendent is required if the person was discharged from a correctional facility within the past 12 months. Prior approval of the warden or superintendent and of the person's case supervisor is required if the person is currently under parole, probation or outpatient supervision.”

Petitioner sought approval to correspond with inmates confined in the California Department of Corrections Correctional Training Facility at Soledad in his capacity as “an official of the Prisoners' Union,” an organization which is neither approved nor recognized by the Department of Corrections. Written permission of his case supervisor was granted on April 11, 1977. Thereafter, petitioner sought approval from the superintendent of the Correctional Training Facility at Soledad. When the superintendent did not respond to his request, petitioner appealed to the Director of Corrections, who responded on July 14, 1977, as follows: “This is in response to your letter dated June 30, 1977, wherein you requested a response over my signature regarding permission to correspond with prisoners in the CDC, as an official of the Prisoners Union.

“Please be advised that you may correspond with an individual prisoner or prisoners as a private citizen according to the CDC rules and regulations authorizing correspondence.

“This office will not grant you blanket approval to correspond with inmates of CDC as an official of the Prisoner's Union.”

Petitioner contends that rule 3133(o ) deprives him of civil rights during imprisonment, in violation of section 2600 of the Penal Code, and constitutes a prior restraint on his free expression in violation of the United States Constitution amendment I, and the California Constitution, article I, section 2.

In the context of these proceedings, it is important to identify the legal status of petitioner and the persons with whom he seeks permission to correspond. Petitioner, as a prisoner on parole, remains under the legal custody of the Department of Corrections and is subject at any time to be taken back within the inclosure of the prison. (Pen.Code, s 3056; In re Tucker (1971) 5 Cal.3d 171, 178, 95 Cal.Rptr. 761, 486 P.2d 657; In re Marzec (1945) 25 Cal.2d 794, 797, 154 P.2d 873.) A prisoner on parole is not discharged from custody until he successfully completes his parole (Pen.Code, s 3000, subd. (d).) In his capacity as a prisoner on parole, petitioner seeks permission to correspond with prisoners actually imprisoned within the inclosure of the prison. We agree with respondent that, unlike Procunier v. Martinez (1974) 416 U.S. 396, 409, 94 S.Ct. 1800, 40 L.Ed.2d 224, First Amendment rights of free citizens are in no way implicated. Petitioner admits as much by his resort to habeas corpus to vindicate his asserted rights.2

Prisoners forfeit significant rights and privileges enjoyed by the general populace as a necessary corollary of prison life. They retain only those basic rights which are not incompatible with the running of the penal institution. (Payne v. Superior Court (1976) 17 Cal.3d 908, 913, 132 Cal.Rptr. 405, 533 P.2d 565.) Section 2600 of the Penal Code (added Stats. 1975, ch. 1175, s 3) expressly recognizes that a prisoner's rights may be circumscribed “as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public.”3 The need for major restrictions on a prisoner's rights was recently confirmed in Jones v. North Carolina Prisoners' Union (1977) 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629: “In a prison context, an inmate does not retain those First Amendment rights that are ‘inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.’ Pell v. Procunier, supra, 417 U.S. (817), at 822, (94 S.Ct. 2800 at 2804, 41 L.Ed.2d 495). Prisons, it is obvious, differ in numerous respects from free society. They, to begin with, are populated, involuntarily, by people who have been found to have violated one or more of the criminal laws established by society for its orderly governance. In seeking a ‘mutual accommodation between institutional needs and objectives (of prisons) and the provisions of the Constitution that are of general application,’ Wolff v. McDonnell, 418 U.S. (539), at 556, 94 S.Ct. 2963, at 2975, 41 L.Ed.2d 935, this Court has repeatedly recognized the need for major restrictions on a prisoner's rights. See, e. g., id., at 561-562, 94 S.Ct. 2963, at 2977-2978; Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 1220-1221, 8 L.Ed.2d 384 (1962). These restrictions have applied as well where First Amendment values were implicated. See, e. g., Pell v. Procunier, supra; Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976).” (Pp. 129-130, 97 S.Ct. p. 2540.)

Jones held that regulations prohibiting inmate-to-inmate solicitation of membership in a prisoner's union did not “trench untowardly on the inmates' First Amendment speech rights” (p. 131, 97 S.Ct. p. 2541) and, further, that First Amendment associational rights may be curtailed “whenever the institution's officials, in the exercise of their informed discretion, reasonably conclude that such associations, whether through group meetings or otherwise, possess the likelihood of disruption to prison order or stability, or otherwise interfere with the legitimate penological objectives of the prison environment.” (Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at p. 132, 97 S.Ct. at p. 2541.) Jones was relied upon in In re Reynolds (1977) 72 Cal.App.3d 489, 492-493, 140 Cal.Rptr. 223, where, in the face of a First Amendment challenge, this court upheld regulations denying “authorization” to the Prisoners' Union, concluding further that the like provisions of the California Constitution could not be distinguished and that the statute (Pen.Code, s 2600) conferred no broader right. While Jones did not address the issue of the First Amendment right to the use of the mails by a prisoners' union, it is clear from a footnote that “if the appellants are permitted to prohibit solicitation activities, they may prohibit solicitation activities by means which use the mails.” (Fn. 8, 433 U.S. p. 131, 97 S.Ct. p. 2541.)

Respondent Director contends that he is not required to accord petitioner special access by mail to any and all prisoners confined within the prison inclosure in order to pursue some unspecified activity as an “official of the Prisoners' Union.” We agree. Further, we conclude that, under the test set forth in Jones, respondent has demonstrated that the “restrictions imposed (by the regulations) are reasonable, and are consistent with the inmates' status as prisoners and with the legitimate operational considerations of the institution.” (Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at p. 130, 97 S.Ct. at p. 2540.)

In response to the order to show cause, the Director has submitted a lengthy declaration in which he portrays the regulation as “one of (the) most important provisions from the viewpoint of prison security and public protection.” The declaration describes the difficulties experienced by parolees in breaking away from inmate ties and from alliances and associations, not always beneficial, formed in prison. The declaration notes the recent growth of prison gangs which have fragmented prison populations and turned inmate against inmate, often violently, and which respondent believes have extended their influence to the streets outside the prison. The Director states that he is unaware of any prison system which does not have rules regulating communication between parolees and inmates and noted that “(w) ithout such rules, prison authorities would have little control over contacts between parolees and inmates which could endanger institutional security as well as public safety,” asserting that the abolition of the rule would also increase the likelihood of smuggling of contraband and the passing of illicit information. The Director further noted that petitioner sought permission to correspond generally with California Training Facility (CTF) inmates rather than with any particular inmate. He interpreted petitioner's request as an “application for a blanket authorization to send letters to, and apparently receive letters from, any or all inmates incarcerated in the facility.” (Emphasis added.) He declared that “(s)uch authorization would be contrary to sound prison administration for it would give Mr. Brandt a carte blanche to communicate with inmates regardless of the security status of the inmate and consideration of institutional safety.”

The Director declared that he was also concerned about the application for another reason, namely, petitioner's intent to correspond with CTF inmates in his capacity as an “official of the Prisoners' Union.” Authorization by the Director would give “tacit approval for the carrying on of such business by that organization at CTF.” Moreover, since the request failed to provide any reason for petitioner's need to correspond with inmates, the Director inferred that petitioner intended to conduct a general solicitation of the inmates on behalf of the Prisoners' Union. He noted that petitioner had been one of the most active inmate organizers for the Prisoners' Union at CTF prior to his transfer and release on parole. The Director stated that the Prisoners' Union had conducted an intense, highly visible, controversial campaign to gain new members at CTF, and that the campaign had created considerable tension and oversensitivity. He stated that “(d)uring this campaign feelings at CTF ran high, each side believing that nothing less than the maintenance of an effective, secure and humane institution was at stake.” The Director noted, moreover, that “Mr. Brandt's activities aggravated the situation at CTF and made it more difficult to abate the problem.”

Because the realities of running a penal institution are complex and difficult, courts must defer to the informed discretion of prison administrators. (Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at p. 126, 97 S.Ct. 2532; Procunier v. Martinez, supra, 416 U.S. at p. 405, 94 S.Ct. 1800.) As stated in Jones, “As we noted in Pell v. Procunier, supra, 417 U.S., at 823, 94 S.Ct., at 2804, ‘central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.’ (P) Appellant prison officials concluded that the presence, perhaps even the objectives, of a prisoners' labor union would be detrimental to order and security in the prisons, supra, at 2539. It is enough to say that they have not been conclusively shown to be wrong in this view. The interest in preserving order and authority in the prisons is self-evident. Prison life, and relations between the inmates themselves and between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration. Wolff v. McDonnell, 418 U.S., at 561-562, 94 S.Ct., at 2977-2978. Responsible prison officials must be permitted to take reasonable steps to forestall such a threat, and they must be permitted to act before the time when they can compile a dossier on the eve of a riot. The case of a prisoners' union, where the focus is on the presentation of grievances to, and encouragement of adversary relations with, institution officials surely would rank high on anyone's list of potential trouble spots. If the appellants' views as to the possible detrimental effects of the organizational activities of the Union are reasonable, as we conclude they are, then the regulations are drafted no more broadly than they need be to meet the perceived threat which stems directly from group meetings and group organizational activities of the Union. Cf. Procunier v. Martinez, 416 U.S., at 412-416, 94 S.Ct., at 1811-1813. When weighed against the First Amendment rights asserted, these institutional reasons are sufficiently weighty to prevail.” (Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at pp. 132-133, 97 S.Ct. at pp. 2541-2542.)

In Pell v. Procunier (1974) 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495, the court upheld regulations of statewide application which barred members of the press from face-to-face interviews with inmates. The court held that the federal Constitution does not require the government to accord the press special access to information not shared by members of the public generally. (P. 834, 94 S.Ct. 2800.)

We find respondent's refusal to grant petitioner, a parolee, special access by mail to any and all prisoners in actual confinement in order to pursue some unspecified objective as an “official of the Prisoners' Union,” an organization which is neither authorized nor required to be authorized by respondent, to be reasonable. We conclude that, when weighed against the First Amendment rights asserted, the institutional reasons stated by the Director are sufficiently weighty to prevail. (Jones v. North Carolina Prisoners' Union, supra, 433 U.S. 119, 133, 97 S.Ct. 2532, 53 L.Ed.2d 629.) Further, we conclude that neither our Constitution nor the statute (Pen.Code, s 2600) confer upon petitioner any broader rights. (In re Reynolds, supra, 72 Cal.App.3d at p. 493, 140 Cal.Rptr. 223.)

The order to show cause is discharged and the petition for writ of habeas corpus is denied.


1.  Petitioner was committed to the custody of the Director of Corrections of the State of California on September 6, 1972, for the term prescribed by law, after a plea of guilty in the Superior Court of Alameda County to a violation of section 12312 of the Penal Code. On September 24, 1976, petitioner was released from San Quentin Prison to participate in the Work Furlough Program at the Rupert Crittenden Center in Alameda County. Subsequently, he was released from the Crittenden Center and placed on parole.

2.  Under California law, one lawfully in custody may seek a writ of habeas corpus for the purpose of vindicating rights to which he is entitled in confinement. (In re Jordan (1972) 7 Cal.3d 930, 932, 103 Cal.Rptr. 849, 500 P.2d 873; In re Harrell (1970) 2 Cal.3d 675, 682, 87 Cal.Rptr. 504, 470 P.2d 640.)

3.  Section 2600 of the Penal Code provides that “A person sentenced to imprisonment in a state prison may, during any such period of confinement, be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public.” Section 2601 of the Penal Code, not at issue here, enumerates certain civil rights which are guaranteed.

ROUSE, Associate Justice.

TAYLOR, P. J., and KANE, J., concur.

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