*1 Sept. No. 17336. In Bank. [Crim. 1974.] ROBERT JORDAN, JR., CHARLES on Habeas Corpus.
Counsel Marson, Sheehan, Daniel,
Charles C. Peter E. Alice William Bennett Tur- ner, Johnston, Fowles, Lowell Julian Richard M. Gonzales and William D. Farber for Petitioner. *3 General, Winkler,
Evelle J. Jack R. Younger, Attorney Chief Assistant General, O’Brien, General, Edward P. Attorney Assistant and W. Attorney Collins, General, Eric Deputy Attorney Respondents.
Opinion BURKE, J. In this case we consider the of the scope attorney-inmate 2600, confidential set forth in Penal Code section privilege (2).1 subdivision 2406,2 We are asked to determine whether Director’s Rule 1Penal Code section 2600 provides in pertinent part as follows: “A sentence of imprisonment so prison any rights in a state suspends term all the the person civil sentenced, trusts, and public forfeits all private authority, offices and all or power during such imprisonment. may during But the Adult Authority person restore to said imprisonment rights right such civil as the authority may deem'proper, except the trustee, to act as a or public give hold office or the privilege exercise of an elector or general power attorney. “This section shall be so deprive following construed as not to person of the rights, civil in accordance with the laws of this state: “(2) correspond, confidentially, Bar, To any with member of the State or holder of office, public provided may that the authorities open inspect and such mail to search for contraband. “(4) receive, To purchase, any and read newspapers, periodicals, and all and books accepted for distribution the United provisions States Post to the Office. Pursuant section, prison of this authority authorities shall have the publica- exclude obscene writings, how, tions containing where, or and concerning information or from obtained; may whom such matter any tending and matter of a character to incite arson, riot, racism, violence; any violent or other any form of and matter murder,_ concerning gambling lottery. Nothing limiting or a in this section be construed shall (i) of prison authorities open inspect any packages and all received (ii) by an inmate to establish reasonable restrictions as to the number of news- papers, magazines, and books may that the inmate have in his cell or elsewhere in the prison at one time.” (4), 2 Director’sRule “Attorneys provides pertinent part: com municating legal with inmates on matters seek to enclose material with their let ters, articles, copies such as news of cases other department or information. The does not view such being granted material as scope within the of the privilege Penal all enclosures under which of Corrections treats Department printed material, is stat mail as consistent with the attorney-inmate nonprivileged afforded section 2600. have concluded utory rights We prisoners Rule that Director’s to the extent that it authorizes authorities to read enclosures in is incon printed correspondence, sistent (2), with section therefore invalid. Vacaville, Petitioner is an inmate at California Medical having Facility, convicted Penal Code sections 207 violating (kidnaping) He of his convictions but (sodomy). does not challenge validity seeks habeas to vindicate to which he is entitled allegedly corpus rights Harrell, in confinement. (See Cal.Rptr. [87 640].) P.2d attacks the of Cor Specifically petitioner P *4 of mail.3 etit attorney-inmate rections all “enclosures” in reading policy ioner that cor argues attorney-inmate this enclosure to exception violates under Penal. Code section 2600 his rights respondence privilege Jordan, this court in 930 recently by- interpreted [103 849, 500 P.2d Cal.Rptr. 873].4 Jordan, 2600, (2), which we that subdivision supra,
In held section mail to attorney-inmate authorities to and inspect permits prison open contraband, mail in for did not reading search allow privileged that the Legislature’s search of “verbal contraband.” We noted primary was to necessary was and that it confidentality objective preservation so as not to emasculate the. section. restrict contraband to matter” “physical (7 Cal.3d at p. 2600, same manner as all other non- Code Section and so it be examined in the privileged mail.” (3), legal incoming mail from a member Rule Under Director’s employee in the registered opened prison correspondence is a of the State Bar with the institution (which presence privileged of the inmate to whom it is addressed. The enclosures) read, although letter is printed as we is not the" hold includes herein inspec- that this inspected type shaken out and We note prohibited contraband. v. recently approved Supreme tion has Court in United States Wolff (1974) 935, 961-963, 418
McDonnell
U.S.
573-577
2963],
L.Ed.2d
94 S.Ct.
[41
attorney-inmate
anything
includes
other than
letter itself. The
3 An “enclosure”
petitioner’s
pleadings
in
case were draft
enclosures involved
a Xerox
particular
decision,
allegedly each related
petitioner’s
which were
copy
unreported
of an
regulations
litigation
prison censorship practices'
prohibiting
anticipated
would be affected
marriage. Examples of other enclosures which
rule
articles,
summarizing
articles
newspaper
affidavits and
cases.
law review
Xeroxed
recently
in Procunier v.
section
was
considered
Penal Code
note that
4 We
case, however,
Martinez,
94 S.Ct.
That
concerned
L.Ed.2d
1800].
It clear enclosures such as Xeroxed and law printed *5 are not of items the Legislature review articles the which tangible types as a serious threat to In event security.5 any contemplated posing prison can enclosures have minimal only the department’s policy the ease the rule. Pre- effect relative of salutary given circumventing the under the need sumably, attorney only current department policy, onto any legal stationery transcribe the matter in enclosure his printed Likewise, fact that interviews it would unread. the and pass personal the with are not attorneys auditory monitoring6 subject emphasizes of of all enclosures in mail in the reading attorney frustrating futility hope Jordan, supra, said in In re and violence. As we avoiding escape plans 938, “The can hatch determined who his conspirator plots hindered, deterred, visits will be but not during only by slightly personal that hinders mail.” rule plotting we must consider the (2), In section strong construing narcotics, security liquors, are prison of items which would threaten 5 Illustrative specifically proscribes importation The weapons explosives. Penal Code of these 171a, 4573.5, 4574.) Code, (See prisons. §§ Pen. articles 636; 6 Monitoring prohibited by is Penal section case specifically these visits Code general firmly principle the that a has a consult with law establishes abrogated legitimate right is attorney privacy, in which not interests absolute his (In Jordan, supra, of the institution. of authorities in administration 930, 937-938, Cal.3d fn. Jordan, supra, favoring attorney-client privilege.7 policy 940-941, Cal.3d we out that . . the of con- pointed protection conduct, fidences secrets is not rule mere but instead of professional of involves which are reflected in public policies paramount importance statutes.”8 of numerous As examination enclosures would not printed enhance it seems doubtful significantly security, Legislature intended to of attorney- undermine policy favoring client communications unrestricted examination permitting materials. that,
The under argue even the rationale of our People decision in Jordan, supra, those enclosures which are cannot printed publicátions as be regarded communications from the author anyone or except writer. This contention is not in of the persuasive, broad particularly light definition of “confidential set forth communication” in section the Evidence Code. That section pertinent “As used part provides: article, this ‘confidential communication between client and means lawyer’ transmitted between a client in the course lawyer information . . . and relationship includes a legal formed and the advice opinion the, given by lawyer (Italics . . . .” added.) lawa review article Certainly aor use to the newspaper clipping potential inmate-client information of the type' properly protected by privilege.
Nor we persuaded by the contention that a People’s publication which is in the domain is public somehow se Once nonconfidential. per an has determined that a is relevant to his particular publication case, inmate-client’s become publication an integral part the attorney’s legal and, such, advice or strategy it would be entitled to section (2), protection. also challenges
Petitioner of Corrections limiting policy *6 the to confidential members correspondence privilege attorney-client 7 The privilege is set forth in Evidence Code section 954. Witkin directly attorney-client older as to the notes that the privilege nesses, authorities are divided whether Evidence, Witkin, (See be liberally strictly should or construed. Cal. Wit Jordan, supra, generally, § better rule T Whatever 930, attorney-inmate privilege Cal.3d mandates liberal construction to the of Penal 2600, Harrell, 675, (2). (See supra, 2 Code section subdivision also In re Cal.3d 702 890)], (27 holding regard den. U.S. L.Ed.2d 91 S.Ct. that with [cert. Code, (4) receive, [right purchase, § Pen. to published to subd. and read writ ings] rights only the civil of those convicted of crime be limited in accordance with legitimate objectives.) penal (e) (duties and 8 SeeBusiness Professions Code section attor ney); seq. (lawyer-client privilege); Evidence Code section 950 et Code Penal (making felony section 636 it a to record a his conversation between attorney permission parties). from all without Bar.9 he that such a limitation is argues State First California Evidence sections 950 (lawyer-client with Code and 954 inconsistent is defined in section to include those “lawyer” Although privilege). nation,” law state or Penal Code section “authorized to in any practice (fn. ante), statu which sets forth the civil (2) right Bar, is prisoners to limited to member of State “any restored torily Therefore, seems office.” or holder of department’s policy public however, Petitioner, asserts with the of section 2600. language consistent with confidentially have a constitutional to right prisoners correspond out-of-state Petitioner does not indicate his reasons for attorneys.10 seeking with only counsel and makes general allegation correspondence to is out-of-state inhibited. Without attorneys severely attempting the abstract the in this decide in full extent of regard, petitioner’s rights though we confidential is to be even hold that permitted, correspondence obtained, attorney no court order has been if the out-of-state California is (1) duly to the authorities: That he showing makes a reasonable state; law re in his (2) attorney-client authorized to an practice exists; (3) that this concerns a criminal relationship pending lationship matter, confinement, re any or the conditions* his client’s including relief.11 lated extraordinary application directed to 2406 of cease Director’s Rule enforcing
Respondent the views it is with of Corrections to the extent inconsistent Department herein. expressed Mosk, J., Clark, J.,
Tobriner, J.,
concurred.
WRIGHT,
J.,
both as to
C.
in the
decision
Concurring.
majority
join—I
with members
inmates to confidential
right
correspondence
to the
that the right
State Bar of California and as
conclusion
with whom an
extends to
with out-of-state attorneys
correspondence
attorneys who
policy all
present
9 Under the
of Corrections
out-of-state
granting
represent
an in
have
mate in
from
court
obtained an order
California
regard
attorneys
to con
proceedings
a criminal
are
California
with
treated as
(Department
Bulletin No.
correspondence.
fidential
of Corrections Administrative
74/3,
22, 1974.)
any
governed by
Feb.
Other
situations are not
out-of-state
but
rule
on a case
case basis.
handled
at
restricting
California
contends that
confidential
10 Petitioner
torneys
rights
petition
expression,
an inmate’s
to freedom of
violates
constitutional
courts,
counsel,
equal
grievances,
and to
to the
to assistance of
redress of
access
*7
protection of the laws.
the
of the
11 We
these
limitation
confidential
particularly
note that
conditions
dictum,
matters,
the
appear
with recent
of
United
privilege to
to be consistent
criminal
correspondence.
status
States
constitutional
of
Supreme Court
the
(Wolff
McDonnell (1974) supra, 418 U.S.
573-579
L.Ed.2d
[41
v.
961-964].)
However,
attorney-client
exists.
the
hold only that
relationship
majority
a
and his out-of-state
prisoner
attorney may
confidentially
correspond
after
attorney-client
an
been
in the
has
established. Implicit
relationship
to
right
communicate
with one’s
is the
to
confidentially
attorney
right
in those
confidentiality
communications in which a
client solicits
prospective
by an
Since the
attorney.
do not
representation
majority
expressly deny
the
to confidentiality in those
a
right
communications in which
prisoner
-
to
seeks
retain the
of
services
an out-of-state
I
the
attorney,
interpret
of the
to include
holding
right.
majority
The
of a
right
inmate to
counsel1 extends
to
representation
matters,
criminal,
all
whether denominated civil or
in which he retains
of
his
access to
right
the courts. As the
this
majority
right exists
recognize
as
matters,
at least
to
criminal
pending
for
applications
extraordinary
relief, and
(See,
matters related to the conditions of confinement.
e.g.,
Ferguson
(1961)
re
A of access the court prisoner’s to for the of re right purpose his dressing rights includes the to counsel to necessarily right retain act (In Ferguson, him. supra, 663.) of com Censorship munications which the to seeks obtain counsel prisoner unreasonably erodes right access to the courts of the ability restricting to set fully frankly forth the factual matters which his prisoner upon claim is based. (Id.., at Invasion the confidential nature of p. between a an he correspondence whom seeks to prisoner attorney cannot be distinguished retain from its burden on the censorship assume, of access to the would to right courts. It be naive prisoner’s instance, that a who accuses institutional officials of prisoner improprieties will freely commit his same charges knowing officials paper daily Since, who read that will letter. supervise every activity majority acknowledges, the confidential communication right with a retained out-of-state not be it follows infringed, communications to retain out-of-state seeking prisoner counsel also may not be infringed. it has
Although
suggested
review of
out-of-
state
attorneys
necessary
insure that
relates to
right
1 We refer here not to
defendant
to have the assistance
criminal
defense,
counsel in his
appointed
private
and to have
if he is
to retain
counsel
unable
(U.S. Const.,
VI;
Const.,
I,
13;
Wainwright
counsel
v.
§
Amend.
Cal.
art.
Gideon
(1963)
733]),
McComb, J.,