*1 must nоt religion, and there neither advance nor inhibit entanglement. excessive more day spirit, In of ecumenical we should this re- appreciation and their for our fellowmen trust and present law ligious and their differences. beliefs age product in the of our and contract are the may recognizes purpose public spirit, ecumenical which dealing through implementation by with a be attained private educational services to furnish the school than re- badly not furnish. Rather needs and does an quire governmental surveillance close excessive every possibility air-tight or risk conceivable door religious support government ac- aid will serve practical tivities, a more reasonable аnd I take would relationship created and the the statute view respect. in mutual trust and born contract were others, Thomas, Appellant, v. State ex State rel. Respondents. July 7, June 1972. Decided No. 330. Submitted 675.) reported (Also in 198 N. 2dW. *3 appellant The cause submitted was for the on the pro Jerry Waupun, Thomas, I, se, brief and the for respondents attorney Warren, on of Robert W. the brief general. general, attorney Klos, Michael R. and assistant alleges he petition,1 J. In Thomas C. his Hallows, involving has an ailment months bowel suffered during problem pain past the lower abdominal times, many ten but months doctor has seen nothing problem. He the doctor done correct the has alleges many he oc- has availed of sick call оn himself but relief and his arrival obtained no since casions has October, has not received a he physical examination, despite complaints. his Gergen Judge dismissed,
When the sent was copies department thereof to of health & social ser- alleges he of no vices. has heard determination Thomas department. alleges Thomas a veteran and he asking wrote to the Administration do Veterans it to treatment, he could to see received this letter what but by prison returned to him unmailed was authorities ground it violated rules. requiring The court a writ believes issue should department warden to make a determination of adequacy Thomas, of medical if treatment it has already justify done and to so rule for- bidding inmate an to communicate mail with the Veterans Administration. Gergen denying Judge petition,
In was of the opinion Thomas had not his exhausted remedies; prisoner required hospitalization if a prison, medical treatment not available at de- partment of health & social should transfer services university hospital for the care needed. *4 Gergen Judge impression under upon was department’s transfer, failure effect prison- such judicial er had a review of determination department. of the pro petition, by We must view this se and it was so treated being against below, secretary department the court as of the services,
of health & social the head of the division of correc tions, prison Waupun. and the warden of thе state at supersede It is other settled that does mandamus legal sought remedies and is not available when a result yet adequately accomplished by un- can be and as other Ludington Henshall v. exhausted means. State ex rel. County (1873), 107; rel. State ex Racine Wis. (1959), 493; Beres Schmidt 7 Wis. 97 W. 2d N. 653; v. New Berlin Wis. 2d N. W. pp. 2d, Mandamus, The Am. Jur. sec. 46. state brief claims Thomas has not exhausted his its remedies, available administrative but en- does lighten stating court are what those remedies this adequate they may think and how be.2 do not We adequate. possible administrative remedies are Provi- of an administrative decision under sions for a review Stats.,3 applicable 227.15, sec. would not seem to be be- cause if is to be transferred to the univer- Mr. Thomas hospital treаtment, regents sity application for department must be made on its own motion un- provision hearing 46.115.4 There no der sec. for or is remedy remedy type is the An alternative ordinarily preclude resorting to mandamus. Beres which would swpra. Berlin, v. New review; Judicial orders reviewable. de “227.15 Administrative directly cisions, legal rights, privileges which affect duties or negative any person, except or in form, whether affirmative department revenue, the commissioner of the decisions of savings loan, hanking shall and the commissioner of be sub ject judicial provided specific chapter; but if review this provisions require petition statutory rehearing as a condi only precedent, tion review shall be afforded after such filed аnd determined.” inmates; hospital; Sick transfer treatment. “46.115 regents (1) department apply shall to the board university gen of Wisconsin for the to the Wisconsin admission any any hospital eral inmate of state institution under applying department, any person committed to for ad or of any depart thereto, person or of other committed to mission ment, ailment, any deformity is afflicted can who remedied, advantageously probably treated at which can be proper hospital, if he cannot care at the receive institution *5 any disposition by department petition
a formal by The term “decision” inmate for such a transfer. subject judicial 227.15, as used in re- sec. which is view, statutorily means a made after decision which is prescribed hearing finding. In Frankenthal v. аnd fact (1958), Real Estate Brokers’ Board Wisconsin Wis. 253, 825, 249, 352, 89 88 N. 2d W. N. W. we stated: Telephone [(1948), “The Co. Case Wisconsin 584, legis- W. 2d held that it was Wis. N. 844] agency
lative intent decisions which Stats., 227.15, are reviewable under be final orders sec. proceedings of contested entered at the end which are findings required In on 227.13. based the instant under sec. of fact proceeding case there was no contested plaintiffs hearing, were accorded a and no findings attempted of fact whatever were entered.” to be Organization Municipal Foreman, See also: Universal Supervisors & Administrative Personnel WERC (1969), 320, 239; Wis. 2d N. W. 2d Park Corp. Bldg. v. Industrial 9 Wis. 2d Comm. 571; Hoyt, 100 N. 2dW. Wisconsin Administrative Act, Procedure L. A Wis. Rev. deter- by department mination application not to make an qualify would nоt seem to as a decision under 227.15 sec. statutorily prescribed as there is hearing. no possible Another remedy suggested by 227.06, sec. Stats.,3 which person an petition allows interested an to which he has been applied committed or to which he has for application admission. The accompanied shall by report physician physician of such institution or of appointed department, reports in the physicians same form as for patients hospital.” admission to the Declaratory rulings. (1) Any “227.06 agency may, by any person, declaratory interested ruling issue a respect applicability any person, to the property or state of facts any rule or statute enforced opportunity it. hearing Full shаll parties. be afforded to interested declaratory ruling A shall *6 ruling agency declaratory respect ap a to the for plicability section, of a Under could this statute. Thomas conceivably ruling department ask for from a the as university hospital whether it should him the transfer ruling treatment, for medical and a is in such reviewable the same manner as “decisions” are under 227.15. sec. However, ruling discretionary the issuance of a is petitioner and afford the does not matter of as appealable ruling. with an Wisconsin Fertilizer Asso. v. 95, 107, Earns (1968), 39 Wis. 2d N. W. 2d 294. Consequently, an be called alterna this method cannot remedy plain, complete, tive adequate, which is as required by County the cases. State ex Racine rel. v. Schmidt, suprа; (1962), Burke Madison v. 2dWis. 623, 631, 898; 117 W. 2d Beres N. N. W. Berlin, supra, page 234; New S., Mandamus, at 55 C. J. p. 47, possible sec. We conclude therefore the 17. reme- preclude dies under ch. 227 should not a resort mandamus. ground
The trial court refused the also on writ the attempt would be an to control the exercise de partment’s It discretion. is true will lie mandamus governmental body to control in manner which a statutorily officer exercises his conferred discretion. State ex Comstock v. (1886), rel. Joint School Dist. 829; Cartwright Sharpe (1968), Wis. N. W. 5; 2dWis. 162 N. W. 2d State ex rel. Kurkiere wicz v. Cannon 166 N. Wis. W. 2d gist Here, Thomas’ that he is is receiving proper effective medical at care helped by and could be a transfer to the Wisconsin allegations Hospital. yet General These are undisputed and, true, department in record if apply must agency parties proceedings bind all to the on the state- alleged, ment of facts unless it altered or set is aside a court. ruling subject shall be A review the circuit court in the provided manner for the review administrative decisions.” regents under Stats., 46.115, sec. the board of University of Wisconsin for admission to Wisconsin Hospital General the inmate Thomas. On the basis record, depart- of this we cannot whether the determine good-faith ment in the exercise of discretion reviewed its analyzed medical needs of Thomas Mr. determined his condition needed no medical was such he care given other than what was state whether it has failed or refused determination make beyond his case refusal warden to reverse the opinion, doctor’s presumably getting adequate Thomas is treat- ment. *7 department statutorily required
Since the is to exercise concerning its adequacy discretion health treat- ment and care of an inmate and record does this that show done compel has so, will lie to mandamus exercise of that discretion. 2d, Mandamus, 52 Am. Jur. p. 398, 77; S., see. 55 Mandamus, pp. C. J. 225, 226, sec. While mandamus compel spe- will not to lie cific result, the writ lie will determine to whether discretion was abused or whether the discretion was arbitrarily exercised capriciously. ex rel. State Knudsen Board v. Education (1969), 43 2dWis. 295; 168 N. Hurley W. ex rel. State Sehmidley 48 663, 664, Wis. 605; 52 N. W. 2d 2d, Mandamus, pp. Am. Jur. 401, 402, The sec. 79. issue presented by petition was not whether Thomas’ medi- cal condition could be better hospital treated in a than in the prison, that because evaluation left to is department. discretion of the question The presented department was whether prison employees and its any meaningful have made determination of Thomas’ doing condition and in properly so have exercised their petition discretion. The attempts claims Thomas’ get to departmental action have been fruitless. The record does any part disclose action on the department Gergen petition Judge complaining even after sent the department. continual This to be one of case seems controversy. Much get to the merits roadblocks petitions were time of this сourt if similar could be saved having on than technical and decided their rather merits procedural interposed only delay the ulti- defenses judicial mate decision and create additional work meantime. granted requiring the think an be
We order should department merits. answer its return should that sufficient detail the trial court so any dis- can determine whether has been abuse of there already if a determination cretion been made has need the additional medical treatment. does not Thomas days upon pass called on Federal courts in recent have been USCA, 1983, involving inadequate claims under sec. medical punishment. and resultant of cruel and unusual care infliction (9th 1971), (misdiagnosis v. Kunkel Cir. 2d 409 Shields Fed. malpractiсe claim; does not create a there he sec. must provide care, failure or refusal or mistreatment under exceptional approach all); circumstances as no treatment at Eyman (authorities (9th Tolbert Fed. 2d Cir. malpractice and mere is not under have wide discretion actionable provide care, giving see. but failure or refusal or the cursory all, constitutionally care at action- care so to be no Wainwright able); (5th 1970), 429 2d 525 Haskew v. Cir. Fed. (court inquire adequacy of abuse should not into care unless Hegstrom shown); (2d broad discretion Church v. officials’ Cir. claim, *8 (to allegations 1969), a must Fed. 2d see. 449 1983 416 equals suggest conscience” or a conditions which “shocks Rhay (9th 1969), Riley act”); v. Cir. Fed. 2d 496 “barbarous 407 provide (despite discretion, officials’ failure refusal wide complaint issues, constitutional and a not medical care creates evidentiary hearing); face on its Stiltner insufficient warrants 420, Rhay (9th 1967), (1967), 2d v. Cir. Fed. certiorari denied 371 1318, 997, Sup. (failure pro- Ct. 18 Ed. 2d U. 87 L. 346 386 S. may excep- care reach constitutional dimensions in vide medical (S. 1971), circumstances); v. 334 tional Webb Oswald D. N. Y. conscience,” test, Supp. (“shocks the act” “barbarous Fed. 993 ; Sawyer Sigler (D. supra) 1970), Hegstrom, v. see Neb. Church 690, (8th 1971), Supp. Cir. 445 affirmed 2d Fed. Fed. 818 320
352
The court also mail Thomas’ believes refusal may represent letter to the an Administration Veterans rights. The state interference with his constitutional argues regulation prisoners’ component of mail ais permissible provided incarceration which does is relying on courts, interfere with inmates’ to the access McKinney v. DeBord (E. 1970), Supp. D. Cal. 324 Fed. Eyman (D. 928; Prewitt v. State Arizona ex rel. Ariz. Supp. 1969), 793, 1969), 315 (9th Fed. affirmed 418 Cir. prisoner’s 2d 572. do not constitu- Fed. We construe rights narrowly. Imprisonment totally a tional so prisoner only civil death. A retains not freedom Avery adequate Johnson v. courts, access (1969), 718, Sup. 89 U. S. Ct. 2d L. Ed. right government but also broader right right grievances, redress includes Cruz Beto to the access courts. 405 U. S. may L. Ed. 2d 263. Grievances con- prisoner cern treatment of a as well as his incarceration. governmental agency The Veterans Administration ais including concerned with welfare of veterans, fur- nishing prisoner medical to them. A services should have inquire governmental agency mail of such concerning his prison. medical treatment in the perceive record why does not we show no reason endanger security letter would or of why against rule prison, such a letter is neces- (constitutional presented neglect claim is if there is obvious mistreatment); intentional Ey Prewitt v. State Arizona ex rel. supra man, (only exceptional circumstances warrant federal court intervention, response by showing investigation warden complaints medical complaint). warranted dismissal of See also: (5th 1970), Beto Weaver v. 505; Cir. Fed. Cates v. Ciccone (8th 1970), (habeas corpus); Cir. 422 Fed. v. Cun Blanks ningham (4th 1969), (habeas Cir. Fed. corpus); 2d 220 Black (W. Supp. v. Ciccone (habeas corpus). D. Mo. Fed. materials, Legal For Singer, Rights: additional see R. Prisoners’ Bibliography A Cases and (1971). Articles
353 punish or of rehabilitation sary justified on the basis cannot administration critical of ment. Letters in they embarrassment cause forbidden because pre must be There prison authorities. convenience to exer curtail public compelling interest dominant right by Sherbert an individual. of a constitutional cise 10 83 (1963), 374 S.U. Verner 430, 182 49 965; v. Yoder Wis. State Ed. 2d L. N. W. right to contact Veterans Thomas’ hold we
While of petition for redress protected as Administration freely correspond prisoner’s grievances, a public of- prison, whether groups outside persons or may upon amendment’s the first be based not, ficials Questions involving the guarantee well. free-speech as correspondencе prisoners’ censorship of denial legal recently from authors.7 attention received increased 7 Rights Scheme: the Correctional Prisoners’ Symposium, Implementation, Legal Controversy and Problems The Vill. 16 of Establishing Law in the Rule Turner, (1971). of Rev. L. 1029 Rights Litigation, Prisoners’ Prisons: A Manual L. Stan. 23 Rights, Discipline and Inmates’ Jacob, Prison (1971). Rev. 508 Bring (1970). Singer, Rights L. Lib. Harv. Rev. 227 5 Civ. —Civ. ing Eighth Due Process to Prison: the Constitution Substantive (1970). Singer, Cen Amendment, U. Cin. Rev. 650 L. Constitution, sorship Prisoners’ Mail and the ABAJ of Unconstitutionality Prison Millemann, The (1970). Hirschkop & of Muraskin, Censorship Life, Mail: (1969). L. Rev. Va. Right the Outside Mail The World, Communicate With Prisoners’ Note—Constitutional (1968). Law— 48 Prison J. 33 Mail, Censorship Prisoners’ 19 Univ. of Kan. L. Rev. 747 Opening Law—Prison Note, Constitutional (1971). Officials Attorneys, Incoming Outgoing Mail From Mail and Inmates’ Right Courts, First Amendment Violates Public Officials Travisono, Speech Palmigiano Supp. (D. Free R. I. 317 Fed. — Palmigiano: The Note, (1971). Syracuse L. Rev. Censorship, Constitutionality Mail Prison Rev. 215 21 Cath. L. Appraisal Correspondence: Ju Prisoner Note, An (1971). Punishment, a Form Abolish Banishment dicial Refusal Rights: (1971). Note, Prisoner & Crim. L. C. P. S. 40 62 J. *10 increasingly called
Federal likewise been courts prisoners' validity on upon to review of restrictions light Con- correspondence of constitution.8 in the frequently prison-censorship policies has of sideration oft-quoted two in of conflict between been stated a terms 834 (1948), views, expressed Price Johnston one in v. 1356, 285, Sup. 92 Ed. 266, 1049, 68 Ct. L. S.U. 2d 143 (6th 1944), in v. Reichard Fed. other Cir. Coffin 65 887, denied 325 443, 445, certiorari S.U. 1568, In Price it is stated: 89 2001. L. Ed. brings necessary with- “Lawful incarceration about many privileges rights, a of drawal or limitation underlying our justified by retraction the cоnsiderations system.” “A penal In the court stated: Coffin ordinary rights except an citizen those all the of retains necessary by implication, him expressly, or taken from law.” (8th 771, 1970),
In v. Swenson 430 Burns Cir. Fed. right correspond prisoner’s American a with the sustained, McDonough was and in Civil Liberties Union (4th 1970), Director Patuxent 429 v. Cir. Fed. of Evidentiary Mail, Prisoner Q. Use 1971 Wash. U. L. of Rights n Jurisdiction, Process, Note, Prisoner Due In- —Federal Solitary Confinement, Censorship Mail, Legal Inmate definite of Assistance, Expression Damages, Freedom Buff. Rev. 21 L. of Censorship and the Note, (1971). Mail First Amend- Prison 539 ment, Right Inmates’ (1971). Cor- 81 Yale L. J. 87 Note: respond, Censorship (1970). Note, Prison Hall Rev. 2 Seton L. 525 Attorney-Client Mail, Baylor Note, (1970). L. Rev. of Right Expression Prison, (1967). So. L. Rev. Cal. of Beyond Critique the Courts: Note, Ken Judicial A of of Refusal Convicts, Complaints 506, to Review the L. 72 Yale J. 537-540 Rights Developing (1963). Prisoners: The Note, Constitutional Law, (1962). Note, L. 110 U. Pa. Rev. 985 Enforcement of Discipline Upon Rights and Its Prison Constitutional Effect Imprisoned, (1963). Those L. Rev. 379 Vill. Conboy Corby (2d 1972), (undenied Cir. Fed. 2d 251 censorship family allegations containing prison letters USCA, showing claim under 42 news state sec. absent some magazine to right psychiatrist and to contact a hearing prisoner’s condition prepare mental sending upheld. treated was While both these cases right mail was a concomitant to the these letters Fitzpatrick (1st gain courts, Nolan v. to the access upheld prisoner’s 1971), 451 court Fed. 2d Cir. ground speech. free press on the to contact (D. Palmigiano 1970), 317 Also, in Travisono E. I. Supp. (D. Hancock N. H. Conklin v. Fеd. Supp. 1119, protections were Fed. first-amendment correspondence public applied prisoner’s offi- *11 recognizing courts, the first-amendment cials. The range require rights prison censorship, mail in the of against government justify to first-amendment curbs present danger,” “com- “clear and such as the standards J., interest,” pelling or drastic 81 “less means.” Yale L. supra, at 94. Moseley discipline security) ; (10th Evans
of
to
or
v.
Cir.
threat
attorney
right
1972),
(no
2d
to write to
about sub
Fed.
1084
455
jects
legality
conditions);
prison
other than
of incarceration
(5th
1971),
(prisoner
Hauck
Andrade v.
Fed.
Cir.
452
2d 1071
right
denied
of
cannot be
to communicate with three branches
Fitzpatrick
government);
(1st
1971),
v.
2d
Nolan
451 Fed.
Cir.
press concerning prison
right
(prisoner
retains
to
to
write
545
matters,
letters,
notwithstanding flat
on all such
in view of
ban
legitimate
ends);
means
to attain
less drastic
available
(10th
1971),
(prisoner
v.
443
Woodson
Cir.
2d
LeVier
Fed.
360
right
appropriate
attorney,
to write
courts or
retains
to
concerning legality
treatment);
of detention or
Sostre v.
officials
1971),
(2d
(improper
to
Cir.
Fed. 2d 178
to refuse
McGinnis
442
postal
inspector concerning
prisoner’s letter
failure of
mail
to
mail,
receipts
return
officials
authorities to
for certified
as
special
may
in absence
circumstances withhold or censor
not
courts, attorneys
public
to
officials intended to advance
letters
get
(8th
abuses); Burns
Cir.
effort
to
redress for
v. Swenson
correspondence
ACLU,
1970),
(cannot
2d 771
forbid
Fed.
with
430
attempt
gain
represents
сourts);
to extent
to
access to
Mc
Donough
(4th
1970),
v. Director
Cir.
2d
Patuxent
Fed.
429
right
(prisoner
correspond
psychiatrist
has
to
and na-
1189
magazine
prepare
judicial
upcoming
to
for and finance
tional
rights guaranteed
prisoner’s
modern
view
applied specifically
amendment,
first
when
writing
rights
letters,
prisoner
is that
retains such
government
can
unless
re-
show
are
the restrictions
reasonably
necessarily
both
lated
the advancement
justifiable purpose
imprisonment,
some
as
security
rehabilitation or the
hearing
Wainwright
condition);
(5th
his mental
Diehl v.
Cir.
1970),
right
(no
correspondence
Fed. 2d
to take
Bible
course,
being
decision
discretion);
one
official’s
Brown
Wainwright
(5th
1969),
(prison
v.
Cir.
419 Fed.
mail
censorship
is matter for
discretion);
offiсials’
Lee v. Tahash
(8th
(prison may
1965),
Cir.
refuse
352 Fed.
to mail letter
attorney
policy,
with statements critical of rules and
where
“proper”
legal
concerning
Pope
letters
delivered);
matters are
Daggett
(10th
1965),
v.
Cir.
350 Fed. 2d
vacated as moot
(refusal
384 U.
S.
A total Stats.,10 53.09, would be unconstitutional. Thus sec. delegates ground excepting it subject on this attack regulations. to make authorities regula- may require read reasonable This statute objec- legitimate effectuate which tions rights infringing the first-amendment without tives grant certainly all the prisoners. The statute does department of health powers censor of an absolute prisoners first- & services. The social fact rights re- necessary for amendment makes courts complaints which involve administration. view upon a doctrine exercise hands-оff cannot The courts constitutionality of the adminis- “abstention” when Cooper Pate See at tration’s act is issue. (a 2d 1030 sec.
U. L. Ed. S. case). regulations prison limit understand We week, may per number of be written which letters may correspondents number to whom a forbids, correspondence write, case, as this persons. regulation Whether certain classes any the standards used to test a violates restriction rights question. of first-amendment is On this regulations not include record, does the detailed any justification the regulations, think Thomas we injunction restraining entitled to an officials Fitzpatrick, supra; Schmidt, supra; Nolan v. Morales See Supp. (S. Follette D. and Carothers v. N. Y. 314 Fed. 1014. 1 0 employed Labor and communications. Inmates shall “53.09 he provided chapter as Communication shall he allowed any person prison except inmates outside the between prescribed by prison regulations.” *13 interfering Adminis- from mail to with the his Veterans justification department tration can show unless the required the its action. The trial court should department & services warden the of health social petition case to on merits. should answer This pass can court be remanded for return so the trial upon the issues raised. merits
By dismissing petition Court.—The order is respondent to order the to file reversed a directions proceedings merits and for return further opinion. inconsistent with this (dissenting). Hansen, prisoner- Robert W. J. petitioner compel a writ of to trans- mandamus seeks his injunction hospital fer to permit a state and an to him agency. letters to a federal write compelling prison hospital, As transfer from majority opinion finds the authorities re- are quired by concerning statute to exercise their discretion adequacy of health care at the and need for trans- hospital fer ato for treatment. majority holding Mandamus, clear, will not makes compel specific only lie to result. It will lie to deter- (1) statutorily mine whether conferred discretion was (2) abused; whether discretion was exercised arbi- trarily capriciously; (3) compel the exercise of that discretion. The issue of whether the hospital could be better treated than in the majority us, because, is before in the wоrds of the opinion, “. . . that evaluation left is discretion department.”
Finding statutorily that this record does not show that conferred discretion in was fact exercised majority “requiring authorities, an order enters department answer on its merits.” Exer- cise of discretion established, the trial court deter- *14 any of mine discretion.” “whether there has been abuse being foggy enough, dis- not does The record agree the writer purpose. limited with return such such limited writing permitting ad- to a federal to the As letter signals changes agency, majority court ministrative the specific opposite Wisconsin in A direction. runs the prison upon to discretion authorities the statute confers regulate any prison inmates and communication between рerson prison.1 here the That discretion was outside prisoner’s him letter to exercised return of the the majority opinion prison violative of rules. Here the as challenges only of but exercise discretion regulations validity prison that, words, “limit of in its may per week, number letters be written of the the number of write,” may correspondents prisoner to whom a correspondence case, in “forbids, as this persons.” of certain classes sweeping challenge right author- Such outgoing regulate prison inmates, mail from ities required majority holds, is of first-amendment because right people to “. . ... . the assurances grievances,” for a redress of Government “Congress that no . shall law . . and the second make is abridging speeсh.” freedom It new is right prisoner counsel, that to write note has the his regard governor conviction con- the courts or in his majority’s prison. in the new im- ditions What is is the constitutionally speech” plication “freedom is a that Actually, inmates. what the assured majority applicability the “modern view” on terms guarantees speech” to convicted “freedom of felons goes beyond narrowing penal institutions federal area discretion within which authorities may regulate prisoner majority and control mail. The 53.09, Sec. Stats. I, Art. Amendments to United Constitution. States any opinion put on authorities would burden any cor- situation to show restrictions necessarily respondence reasonably “. are . . both justifi- of, . . related . advancement . some imprisonment. Applying ap- purpose of .” able . . such proach majority district cited federal judge court level decision where federal found district governmental “compelling interest” not shown *15 prison prevented correspond- a where inmate was from ing majority woman, with a married The his wife.3 opinion gen- “modern view” would its the bulldoze prison jurisdic- eral rule as to mail in as followed most up general to tions That which now. the writer rule, apply, would follow and here is: general regulation essentially “. the rule . . the that of the [is] penal a flow of mail ministrative from institution an ad- matter for officials and action their regard subject judicial in is not except thereto to review the under most unusual . . .” circumstancеs. general rule, mailing privileges To this within fall management internal area, recognized the there has been a definite, limited, but exception, well to stated be: recognized “. . we exception’ . a ‘narrow the general his regarding right prisoner rule the of a correspond with attorney, appropriate courts, officials, the state legality the of his conviction or the condition of his incarceration. . .”. (W. v. 1972), Schmidt Supp. Morales D. Wis. 340 Fed. 544. Moseley (10th 1972), Evans v. Cir. 455 Fed. 2d 2d, See also: 60 Am. Jur. Penal and Institutions, Correctional p. 47, stating: “Ordinarily regulation sec. prisoners’ the of mail a is matter within discretion of officials, showing and in the legal absence of a aof a violation of right by prison or of officials, an abuse of discretion а court should not interfere. . . .” supra, Evans Moseley, page (citing at LeVier Wood- (10th son 360). Cir. 2d, Fed. 2d also: See Am. Jur. Institutions, Penal p. and Correctional 49, stating: sec. “Prison prisoner’s officials should not interfere a courts, to the access right It exception protects is this rule of courts, gov- counsel, to communicate with public legality only “regarding ernor or official but of conviction his condition of his incarceration.” grievances” gen- exception This is the “redress to the eral individuals, rule. like other prisons, Persons government griev- redress “ which, of prisoners ances course, includes ‘access purpose presenting the courts for the their com- ” 6 plaints.’
However, us, case before letter which prisoner sought to send concerned medical facilities and agency Administration, services Veterans an government. the federal service-providing V. isA. facilities-maintaining agency. federal It au- no has thority, jurisdiction legality pris- or role as to the oner’s conviction or the conditions of his incarceration following conviction in a court. It would take lot stretching bring letter to within the V. A. grievances” exception general “redress of to the rule that control of mail is a matter of administrative dis- cretion for authorities determine.
However, majority if the had held no more than that grievances” the letter here fell within the “redress of exception, all that would have occurred would that be doorway categоries the was widened as what or classes persons may by of prison be written to a inmate. grievances” Whether based “redress of public policy considerations, the result would have been that where prisoners, the condition of their health at issue challenge in a either to conviction or to of conditions incarceration, may any physician, write any hospital designed correspondence procure a with reasonable for the legal purpose testing validity assistance for the constitutionality punitive his conviction or treatment may which he claim he cruel and unreasonable. . . 6 Cruz Beto 405 U. S. 31 L. Ed. 2d hospital medical maintained facilities goes than That further Veterans Administration. would, writer at thе definite limits but least general exception control of widened rule that the prison prison would mail is matter administration majority gone be clear. than has further that. majority widening Not content doorway, opinion hinges. the door its it has has knocked off This finding guarantee done the first-amendment speech applicable prison freedom of in inmates penal prison can institutions, unless authorities show something than “. . . more convenience [m]ere prison approach administration.” If this were to generally accepted, will,8 we doubt un- jailers prison employees task of enviable would only difficult, become not more far but also more dangerous to pris- and all those themselves confined in optimum compressing conditions, ons. Under and con- fining a considerable number of felons, convicted some aggressive acting-out psychopathic personalities prison setting, creates volatile situation. The main- avoiding order tenance of and the group of individual or Wainwright (5th 1969), Brown Cir. Fed. 2d hold ing, prison “The control of mail ais matter of administra tion. The claim here does rise to the level of a federal claim (Holding censorship . . .” mail is a matter discretion.) Wainwright (5th 1970), officials’ Diehl v. Cir. (citing (5th 1969), Fed. Granville v. Hunt Cir. Fed. stating pages 1309, at 1310: Court has been “‘[T]his very chary interfering operation about in the internal and admin systems, only exception istration of and we have done so ‘exceptional al generally cases . . . .’ The cases’ have heen complaint limited indicating to situations where states facts an abuse of administrative discretion. . . .” reject appellant’s “We as frivolous contention that the First Amendment correspondence embraces the unlimited to take *17 prison courses. The simply officials’ decision was an exercise of discretion. . . .” v. Wainwright, Diehl supra, at page 1309. proper of of essence inmate violence are acts the within management. of order the maintenance Without pur- rehabilitative its nor prison, neither custodial place a A poses or advanced. can be served Hyde a death,” majority is it of Neither “civil states. of United States a London, Park in branch office discipline of pоstal the maintenance Neither service. by would be served promotion nor of rehabilitation mailing providing soapbox or an unlimited service a guar- prisons.9 jails The first-amendment those in applied pris- a speech” in cannot antee of “freedom of involving consequences on situation without serious employees. safety of both inmates lives and opinion, it need not In be. writer’s it clear Supreme has made The United Court States rights privileges are avail- that all constitutional penal The ma- institutions. to convicted felons able jority opinion clear-cut forth the statement sets highest point, court on the to wit: exact nation’s brings necessary about the incarceration with “Lawful many privileges rights, drawal retraction limitation justified underlying our the considerations 01 system.” penal high controlling is, court how- This statement majority opinion ever, as no more than referred to oft-quoted . part “. . a conflict between two views.” Moseley, supra, where the See: Evans v. Circuit Court Tenth “right” prisoner Appeals dealt of a to have letter attorney not his to an connected with case nor retained mailed “part correspondence his efforts” to establish him. The was chapter a “Black Front” or United activist- within organization. appeals page type court noted at inmate his “. . . fellow inmates desired solicit attorney’s] help chapter in their his efforts establish a [the prisoner’s prison. he .” To the claim that hаd a inside the . . mailed, appeals right” to letter “constitutional court his answered, disagree.” “We majority opinion, citing Quoted from the Price Johnston L. Ed. 334 U. S. *18 appeals The other one federal view that of stated Supreme court a Court case which the United States Something declined to has been added new review.11 grant constitutional law if certiorari such refusal in a later case or modification reversal constitutes highest ruling by a clear-cut and definite the nation’s particular phase on a court of constitutional law. by Until it is or modified reversed court that wrote Price it, the decision establishes confinement necessary brings “. . . about the withdrawal” many privileges rights.12 right and One withdrawn right is, the submits, writer to write one to whom right privilege will about what one chooses. The attorney, public courts, write one’s official department function whose concern with includes con- prisons sufficiently protects victions conditions in grievances” right. To the “redress add “freedom speech” appears aas assured inmates unnecessary, writer an assurance unwise and of future difficulties. deny injunctive prison-
The writer would relief to the finding er-petitioner, statutorily discretion, no abuse of finding conferred, and no invasion constitutional rights privileges in the refusal—under rules— authorities mail the letter from the agency. inmate to federal I am authorized state that Mr. Justice Leo B. join Justice Mr. Hanley Connor T. Hansen in this dissent. (6th Reichard Cir. 143 Fed. cer Coffin tiorari denied 325 U. S. Ed. 89 L. 2001, stating: rights “A retains all ordinary of an except necessary expressly, those citizen implication, taken him
from law.” supra, Johnston, page Price v. at