Burrell v. McCray – Oral Argument – April 27, 1976

Media for Burrell v. McCray

Audio Transcription for Opinion Announcement – June 14, 1976 in Burrell v. McCray

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Warren E. Burger:

We will hear arguments next in 75-44, Burrell against McCray.

Mr. Attorney General you may proceed when you are ready.

Francis B. Burch:

Mr. Chief Justice and may it please the Court.

The cases here today are consolidated, three cases dealing with three inmates of the Maryland state Penitentiary.

One is McCray, one is Mr. Stokes, the other is Mr. Washington.

We will give a few facts with respect to Mr. McCray since that was the only case that was decided on its merits by the Fourth Circuit.

The only common issue with respect to Mr. Stokes and Washington is the single issue as to whether or not the exhaustion of state administrative remedies is required.

McCray is now confined in the Maryland Penitentiary, serving 28 years for having — been guilty of four counts of assault with intent to Murder.

During the first four years of his confinement, he filed 37 Civil Rights action in the Federal District Court in Baltimore.

Thereafter, he filed additional Civil Rights actions so there are now 55 actions that have been filed by Mr. McCray.

8 of which deal with habeas corpus relief and the balance of which deal the Civil Rights relief.

Until the Circuit Court in this case, which we say wrongly, gave some remedy to Mr. McCray, not anyone of his petitions gave him any relief whatsoever.

Judge Field of the Fourth Circuit in his dissent described McCray from his litigious history as a chronic trouble maker and malcontent who was engaged in a ceaseless array of frivolous civil suits at public expense based upon allegations that have already been repeatedly found worthless and I would say that as of today the civil actions that have been filed by Mr. McCray have caused the state of Maryland something in excess of $350,000.

McCray alleges deprivation of Eighth and Fourteenth Amendment Rights in 1971 in two separate occurrences, a month apart, alleging improper punishment, illegal conditions of confinement and denial of medical care.

The Fourth Circuit declared that the condition of McCray’s two days solitary confinement, resulting from his disturbance and misconduct, violated the Eighth and Fourteenth Amendments, prohibition against cruel and unusual punishment.

Thurgood Marshall:

Do you have penitential in Baltimore?

Francis B. Burch:

Pardon me sir?

Thurgood Marshall:

Penitential in Baltimore, where he was?

Francis B. Burch:

Penitential, Maryland state Penitentiary, in Baltimore City, yes.

Thurgood Marshall:

Oh! Is that solitary is still down underground?

Francis B. Burch:

Well, I do not really do not know Mr. Justice Marshall.

I have not been down there so I am not sure exactly where it is.

Mr. Stutman?

Donald R. Stutman:

(Inaudible)

Francis B. Burch:

It is the south wing segregation division which I understand is not underground, is that correct?

It is not underground.

The Fourth Circuit remanded the issue on monetary damages and the qualified immunities of the prison guards to the District Court for further determination.

But in our view it is unnecessary for this Court to reach the merits of the McCray case, and therefore, we will not deal further with the facts.

We submit that the District Court of Maryland was correct in its threshold determination that the widely recognized principles of exhaustion of state administrative remedies required the respondents in these cases to present their complaints concerning the conditions and circumstances of their confinement, first to the Maryland Grievance Commission before approaching the Federal Courts.

The Maryland inmate Grievance Commission procedure is an adequate and an effective state administrative remedy and the decisions of this Court do not, in our view, hold that where there is an adequate administrative remedy, a litigant may seek relief in the Federal Courts without first exhausting that administrative remedy.

Francis B. Burch:

We believe that this view is implicit in Mr. Justice Douglas’ comments in Bicknese.

In that particular case, he stated, moreover it is by no means clear that Illinois Law provides petitioners with an administrative remedy sufficiently adequate to preclude prior resort to a Federal Court for protection of their Federal Rights.

And I might say that this particular quote immediately followed the citation of the opinion of this Court in Lane versus Wilson in 307 U.S.

We believe that Lane versus Wilson, the predecessor of the Monroe, specifically held by implication, if not by direct holding, that where there was an effective state administrative remedy that this must be exhausted before a 1983 suit, maybe unattained by the Federal Courts.

John Paul Stevens:

General Burch, what would the Maryland Commission have done in this case if the allegations of the petition were true?

What remedy would have been the appropriate remedy that the commission could have given?

Francis B. Burch:

If the allegations were true, the commission could have changed the system with respect to, they could have taken disciplinary actions against the guards who were involved in question.

They could have notified the Superintendent of the Institution that the procedures would have to be changed and they would notify him that in this particular case there was a question of the two days solitary confinement without the person — that Mr. McCray being clothed.

This was done for his own protection, but if the Administrative Grievance Commission were to have made the determination that this was improper, they could have issued directions which would be binding upon the agency to correct that condition.

John Paul Stevens:

If the allegations were true, they were not following rules which are already in effect, is that not correct?

Does he not allege that there was a rule that of required immediate (Voice Overlap).

Francis B. Burch:

It was difficult to state exactly what Mr. McCray alleged because the allegations in the complaint were prepared by him in his own hand and they are not particularly articulate.

John Paul Stevens:

Well, at least the Court of Appeals thought he had alleged that there was a violation by the Prison Officials of the Prison’s own rules?

Francis B. Burch:

Well, it may well be that he could have claimed that there were violations of the Prison’s own rules, but at least the Grievance Commission as approved by the action of the Secretary would have been able then to take remedial action within the Institution itself.

John Paul Stevens:

And what (Voice Overlap)

Francis B. Burch:

To see that it did not occur again and that would be the nature of the relief that was requested which was both declaratory and injunctive.

There was a request for monetary damages.

William H. Rehnquist:

Mr. General, I think there is a statement in the majority opinion of the Court of Appeals to the effect that a state is required to follow its own procedural rules and of course that is certainly true in the Federal Government.

Do you agree that, that is a constitutional requirement as to the states?

Francis B. Burch:

Well I would not say that it is necessarily a constitutional requirement, unless it involves a Constitutional Right, but certainly it would be the most desirable thing that a state be required to follow its own rules or an institution —

William H. Rehnquist:

Where it is not a Constitutional Right then presumably the Federal Court has no business imposing it on a state?

Francis B. Burch:

It certainly would not have the right to impose that burden on the state unless it involved the impingement of a Constitutional Right, it would seem to me.

I might say also that Mr. Justice Harlan in Damaco read the majority opinion at least to hold that is a requirement of exhaustion that the requirement of exhaustion of an adequate state remedy was condemned in Monroe.

In the 90 years prior to the passage of the Civil Rights Act of 1871, the 90 years that passed between then and the holding in Monroe, this Court and the lower Federal Courts assumed it with good reason that exhaustion principles applied in 1983 action where there was an adequate administrative state remedy.

Furthermore as early as 1886, this Court Ex parte Royale decided that a state prisoner seeking federal habeas corpus relief under what is now Section 2254, could first be required in the discretion of the Court to apply to the state Court for such relief.

This specific mandatory requirement by the way was not written into Section 2254 by the Congress until 1948, some 62 years later.

And certainly what was true under Royale as to the predecessor of Section 2254, should be equally be as applicable in 1983 cases.

Next to life itself, the most cherish right guaranteed by the constitution is that of a person’s right to his freedom.

This Court has held in legions of cases that property and other rights are insignificant in comparison to one’s right to his liberty.

If this be the case then by what possible logic can it be said that state administrative remedies need be exhausted before one can evoke Federal Court Jurisdiction to seek relief from alleged illegal incarceration, while those same remedies need not be exhausted with respect to alleged conditions of confinement such as food, privileges, censorship etcetera, to ask the question, we submit is to answer it or more simply stated has this Court said in the past that the state can be trusted with the most precious of all person’s rights his liberty, but yet cannot be trusted with this property rights and other privileges.

Francis B. Burch:

We certainly think this is not the case.

Monroe simply held that the right to litigate in the state Courts could not deprive a citizen of his right to immediate recourse to the Federal Courts.

But in so holding, this Court specifically noted, that one of the three main purposes of 1983 was to provide a Federal remedy whether state remedy though adequate in theory, was not available in practice.

As this Court knows the doctrine of Monroe was extended two years later in Bicknese a School System case to a questionable administrative remedy as contrasted with the judicial remedy in Monroe.

In Bicknese, Justice Douglas, suggested for the first time that the Court’s Supplementary language in Monroe actually represented a fourth purpose, but as Judge Noel in Anger Egnar versus Texas City said to read the Court’s supplementary language as creating a fourth and virtually unlimited occasion for the application of the Section 1983 would render superfluous Monroe’s extensive previous discussion of the second and the third Statutory purposes.

Then 8 years after Bicknese in a majority per curiam opinion in Willwording, a statement appears and I might say without more that an inmate need not first seek questionably available administrative remedies.

We submit, however, that as the dissenters did in the Fourth Circuit, this loose Statement from the per curiam Willwording holding is based upon a faulty reading of the predecessor cases and should not and does not represent the state of the existing Law.

Moreover the unanimous views of all 7 of the Circuit Court Judges below reflected a deep disenchantment with a non-exhaustion rule followed and applied only because they said we had no alternative and the exhortation that this Court reexamine and modify its earlier decisions.

We would hope that reexamination will result in a clarification of the per curiam Willwording holding in favor of a narrower and more accurate reading of the sixth-three majority opinion in Monroe.

Such a clarification we submit is similar to the one undertaken by this Court in 1973, in Miller versus California.

There it was stated that the Ross test of obscenity had been drastically altered in 1966 by the plurality opinion in Memoirs versus Massachusetts so as to require prosecutors to prove a negative that the material is utterly without redeeming social value.

Following this Court’s opinion in Memoirs, a multitude a per curiam opinions breathed life into the orderly without redeeming social value test and thereby seem to establish that as a basic test which was there that — as a basic test which was there to consider controlling in numerous lower court decisions under the doctrine which we call creeping stare decisis.

The Miller decision, however, finally returned the case law in this area to its proper and established path.

As this Court was sure enough of its questionable role as a super sensor and as the Lower Courts were sure enough of their roles as statures by the reexamination and clarification of Memoirs by Millers.

So also would this Court only be shoring up the role of super warden by a proper clarification of Monroe and its progeny in this case.

The same of course would apply to the role of the Lower Federal Courts as being the wardens of the various Institutions throughout this country.

The nature of the administrative remedy provided by the Legislature of Maryland makes the time and the setting, particularly right for reanalyzing and restating the law on this very thorny subject.

Maryland’s Inmate Grievance Commission presents this Court with a case of first impression.

Two of its members must be lawyers and two of its members must be experts in the field of correction.

The Commission is headed by an Executive Director who has a significant professional experience than significant professional assistance.

Only those grievances or complaints which are wholly lacking in merit maybe dismissed without a hearing.

All of the rest must be the subject of a hearing on the merits with a full penalty of due process rights.

The commission must decide the matter promptly in a written order, containing findings of fact, delivered to the Secretary who must affirm, modify or reverse within 15 days.

If the action is favorable to the inmate, the Secretary is directed to implement the order and to take whatever action he deems appropriate in light of the commission’s findings.

If unfavorable, judicial review is immediately available to the inmate in the state Courts under the Administrative Procedure Act.

Surely it cannot be said that Maryland’s remedy is an adequate solely because it does not provide for money damages which are appropriate, which are really not appropriate or available in the vast majority of 1983 prisoner suits.

Meaningful relief in practically all such cases is achieved by declaratory or injunctive relief that is determination of an unconstitutional prison practices.

In the myriad category of cases where monetary damages maybe appropriate and available, the Federal Court could simply stay its hand until the completion of the administrative proceeding, thus, gaining the benefit of the record there made.

As the District Court below said in Washington, the short answer to this is that since the Commission has been invested with powers comparable to the equity power of a Federal Court, the prisoner will not be prejudiced by delaying an award of damages until the grievous procedures had been exhausted.

Respondents have raised several objections to the adequacy of Maryland’s administrative remedy.

Francis B. Burch:

They say that 54% of the grievances filed are dismissed without a hearing as wholly lacking in merit and that in only 11.4% of the cases is the grievance found to be meritorious.

First of all we would note that 938 or 55% of the cases disposed of were disposed of administratively to the satisfaction of the inmate, generally through the offices of the Commission.

And of the remaining 744 cases, a 191 were decided in favor of the inmate.

This represents a 66% favorable disposition, instead of the 11.4% as alleged by the respondents.

We will also note that the Federal Court under Section 1915, possesses the identical authority to dismiss wholly frivolous in forma pauperis suits and respondents own statistics establish that only 4.9% of Federal Civil Right Suits ever reach trial and is not unlikely that an even lower percentage are ultimately disposed of favorably to the inmate.

Finally, respondents complain about the lapse of 24 weeks between the filing of the complaint and the final decision thereon.

The actual time today, we would say, is 94.9 days.

The average time elapsing between the date of the filing of all grievances and all dispositions is only 40.6 days.

By contrast, the elapsed time in Federal Court between the filing of a 1983 prisoner suit and its ultimate disposition at the trial table is we understand some 24 to 36 months.

To comprehend the problem that Maryland has sought to be in the context of that problem, it is helpful to remember the language of Mr. Justice Stewart in Preiser (Inaudible) discussing the intimate day to day relationship of the inmate with the state comity.

The strong considerations of comity that require giving a state Court system that has convicted a defendant, the first opportunity to correct its own errors, that is also required giving the states the first opportunity to correct the errors made in the Internal Administration of their prisoners.

Mr. Justice Powell expressed similar concerns in Procunier and Mr. Justice Marshall in McCarthy if I may, I would like to quote from his language in that case.

At page 1663, Mr. Justice Marshall said, “Certainly very practical notions of judicial efficiency come into play as well.

A complaining party maybe successful in vindicating his rights in the administrative process.

If he has required to pursue his administrative remedies, the Courts may never have to intervene and notions of administrative autonomy required that the agency be given a chance to discover and correct its own errors.

Finally it is possible that frequent and deliberate clouding of administrative processes could reek in the effectiveness of an agency by encouraging people to ignore its practices.

The nature of the complaints —

Thurgood Marshall:

Mr. Attorney General, is the practice under which this man had been complaining still in existence?

Francis B. Burch:

It is still what Mr. Justice?

Thurgood Marshall:

In existence in this penitentiary?

Francis B. Burch:

As far as I know the practice of putting him in the solitary confinement?

Thurgood Marshall:

Put him in solitary, is that still being practiced?

Francis B. Burch:

Solitary confinement is being practiced in the — what are considered to be the appropriate cases.

Thurgood Marshall:

It would be in (Inaudible)

Francis B. Burch:

Where there is an appropriate case.

Now in this particular instance —

Thurgood Marshall:

Oh! I mean you have known about this case, have you not?

Francis B. Burch:

That is right.

Yes sir.

Thurgood Marshall:

And you made no effort to change the practice –?

Francis B. Burch:

The practice has been changed.

Thurgood Marshall:

I thought you said you did not.

Francis B. Burch:

Let me say this first of all Mr. Justice Marshall.

We disagree with the findings of the Circuit Court.

The Fourth Circuit in this case, Judge Arthur (ph) in the Court below made very extensive findings of fact and found that the practice of which he had complained about was not improper, was not illegal, did not violate any of his constitutional rights.

We think that the Fourth Circuit made a serious mistake in violating the long established principles that the findings of fact by the Court below who had the opportunity to see the witnesses, to hear the witness, to test the credibility of the witness, that all of the information before it, that the Fourth Circuit would come in and reverse in the manner in which it did.

Thurgood Marshall:

I respectfully ask your answer to my question.

Is the practice still in existence?

Francis B. Burch:

Are you asking me, is there solitary confinement under certain extreme cases?

Thurgood Marshall:

Like this one.

Francis B. Burch:

No.

Like this one, yes, there would be because we said there had not been a violation.

Now, we ask the Court to reverse.

Thurgood Marshall:

I thought you are asking this Court to give Maryland a chance to take care of its own problem?

Francis B. Burch:

That is correct.

Thurgood Marshall:

You have had that chance and you have not done anything about it.

Francis B. Burch:

Well, the case has not finally been disposed of on its merits, Your Honor.

Thurgood Marshall:

But practice is still there?

Francis B. Burch:

We say that in the proper case, a solitary confinement is still used, in the proper case.

Thurgood Marshall:

(Inaudible) and stay there until somebody goes to the state route, so far as you are concerned?

Francis B. Burch:

Well —

William H. Rehnquist:

And you would say, well, stay there till the Federal Courts get through it and approve it in appropriate cases too?

Francis B. Burch:

There is a question about that, Your Honor and I am just saying if we are not — the state has not abolished the practice where it is necessary for the protection of the inmate as it was in this case, where it is necessary for the protection of the other population of the prisons.

Thurgood Marshall:

This is I think proved, did you he stripped?

Francis B. Burch:

He was put in isolation for the purpose of protecting him because he had acted in a very strange manner.

He had threatened to do harm to himself, his clothes were taken away from so he could not strangle himself.

Had it not been done so and had the man taken his clothes or his belt or his shirt or his underwear, whatever it might be and hung himself, then it would have been a 1933 action in the Federal Courts claiming that the state had failed to do what was necessary to protect this man against himself.

Thurgood Marshall:

The state of Maryland have any psychiatric treatment?

Francis B. Burch:

Yes, they have psychiatric provisions.

Thurgood Marshall:

Did they treat him?

Francis B. Burch:

They tried to obtain —

Thurgood Marshall:

Did they treat him?

Francis B. Burch:

Within a matter of two or three days, they were able to get the psychiatrist to come in and to interview him and to get him the treatment.

Thurgood Marshall:

After you had his clothes taken away from him and he is thrown in the cell?

Francis B. Burch:

They made an effort, over the weekends which was in this particular instance, three days weekend —

Thurgood Marshall:

It is perfectly alright?

Francis B. Burch:

I am not saying it is perfectly alright.

I am saying that maybe somebody made a mistake in not going out and getting the particular psychiatrist, but that does not mean the system is bad.

That does not mean that hereafter that would not be corrected and I believe it will be corrected.

I think maybe an error was made in that particular regard.

Thurgood Marshall:

But General I asked you had it been corrected, you said it had not.

I guess I misunderstood you.

Francis B. Burch:

Well, If Your Honor please, I understood your question to suggest as that maybe the whole question of solitary confinement was eliminated from the prisoner system.

If that was what Your Honor’s question was the answer is no.

If it was have steps been taken to see that in the future if you have a situation such as this and a psychiatrist is needed or psychologist is needed and is not available, that additional remedial steps will be taken to see that he is made immediately available, yes, those remedies have been established and those steps have been taken.

And to that extent I think that is all the state could be expected to do, but we say again, we do not think that the decision of the Fourth Circuit was correct when it made the determination that the lower Court was in error.

John Paul Stevens:

Mr. Attorney General on that very question, am I correct in understanding that the Court of Appeals did not disagree with the findings of fact, but rather drew different inferences for those findings?

Francis B. Burch:

They did.

The Court of Appeals accepted the facts as found, but in effect said as a matter of law they are now up to a denial of constitutional rights under the Eighth and Fourteenth Amendment.

John Paul Stevens:

48 hours without clothing in a cell, without heat and so forth was cruel and unusual?

Francis B. Burch:

Which we respectfully disagree with.

John Paul Stevens:

Yes, but the Court of Appeals will not be bound on that kind of question by the judgment of the District Court, would it?

Francis B. Burch:

The Court of Appeals obviously would have the right to make whatever determination it saw fit (Voice Overlap) the law.

John Paul Stevens:

But it is not like setting aside of finding of fact as clearly erroneous?

Francis B. Burch:

But we think that it was clearly erroneous on the part of the Fourth Circuit Court of Appeals to make such a finding of law on the basis of the facts as established in the record.

Lewis F. Powell, Jr.:

Mr. Attorney General, may I ask you a question?

Francis B. Burch:

Yes sir, Mr. Justice Powell.

Lewis F. Powell, Jr.:

Just come back to the adequacy of the administrative remedy.

Most of these prison cases, at least most of the ones I have seen, claim damages.

They may also request injunctive or the declaratory relief.

Lewis F. Powell, Jr.:

What does this Board, this commission that you have described, do with a damage claim?

Francis B. Burch:

The Commission cannot award damages.

Lewis F. Powell, Jr.:

I understand that, but does it make any finding with respect to the entitlement to damage?

Francis B. Burch:

I do not believe that it makes any finding of fact with respect to damages, but I do believe that what it does, it develops a record which the Federal District Court where a claimed for damages has been made at the appropriate time, may then have the benefit of that record, a determination on the face of the record is to whether there has been a substantive denial which would on the face of it seemed to entitlement to damage, it was the right for the Federal Court then to take such a additional action as it deemed necessary such as this testimony as it deemed necessary in order to get full and final relief.

Lewis F. Powell, Jr.:

Are there any decisions of a Federal District Court in Baltimore that indicate whether that record is admissible in evidence?

Francis B. Burch:

I know of none.

As a matter of fact, they had used it, Mr. Stutman tells me in summary judgment proceedings in Maryland and we know as a matter of fact that of the 2504 cases tried before the Inmate Grievance Commission, about four or five or six of them have subsequently been filed as Civil Action, Civil Rights Action in 1983 cases and in those cases the record has been made available to the Court and the Court has made good use of that record.

Your Honor, Mr. Chief Justice I would like to reserve the last several minutes.

There are some other things I would like to point out.

Thank you.

Warren E. Burger:

Mr. Morgan.

Charles F. Morgan:

Mr. Chief Justice and may it please the Court.

The state of Maryland is asking the Court for a decision on the broad question of whether a Maryland prisoner maybe required to exhaust state administrative remedies in an action properly bought under 42 U.S.C. 1983, alleging violations of constitutional rights.

The fundamental defect in the state’s argument is that the asserted remedy, the Maryland inmate Grievance Commission is not an adequate administrative remedy under the circumstances of these cases.

In addition the state misconceives the proper role of this Court in asking that an exhaustion requirement be judicially grafted on to the Civil Rights Act of 1871.

Whether the exhaustion administrative remedies doctrine is to be made applicable to 1983 cases is a matter for Congress and not the Courts to decide.

The cases before the Court do not present a proper vehicle for a ruling on a broad constitutional question urged by the state.

The facts require only a holding that there is no adequate administrative state remedy for these plaintiffs.

Even in the case where exhaustion, even in the case where the exhaustion doctrine is recognized to apply, exhaustion is not required if the proposed remedy is found to be inadequate or if the purposes of the doctrine will not be served.

These cases present exactly that situation.

First with regards to Milton McCray separate actions against Mr. Burrell and Mr. Smith, the only relief sought by McCray in these cases is damages for being subjected to violations of his Eighth and Fourteenth amendment rights.

As the Attorney General pointed out McCray does request damages.

However, he was incorrect in stating that McCray requested declaratory and injunctive relief in those cases.

If I may refer the Court specifically to the appendix, pages 12 and 16 are McCray’s per se complaints, page 22 is his amended complaint in Burrell, page 43 and 137 are the opening statements by council at the evidential hearings and both of those cases and all that indicates clearly that the only request being made by McCray in those cases was for damages.

I believe when his original per se complaint was filed in one of the cases, he requested injunctive relief because at that time he was being subjected to the conditions he was complaining about, but by the time the case came to trial it was quite evident that the only issues before the District Court had to do with damages.

Potter Stewart:

How many actions has Mr. McCray brought?

Charles F. Morgan:

The records reflects that Your Honor.

I am not sure of what the number was.

I think the Attorney General said 37 and that maybe I can.

Potter Stewart:

All in District Court or are some of them just to Internal Grievances?

Charles F. Morgan:

Well, I believe some of them were in the state court system as well.

Your Honor.

Potter Stewart:

But you think some 37 Court actions?

Charles F. Morgan:

That is reflected somewhere in the record in Chief Judge Norton’s opinion.

I do not have the figure, but it is high.

Lewis F. Powell, Jr.:

I thought he said 55, it does not make any difference but —

Charles F. Morgan:

I am not sure about that sir.

Harry A. Blackmun:

(Inaudible) name is a familiar one here.

Charles F. Morgan:

As the state concedes the Maryland Inmate Grievance Commission does not have the authority to award either compensatory or punitive money damages and when an administrative agency is not empowered to grant relief, effective relief or as in this case any relief, it must be deemed to be inadequate remedy and exhaustion should not be required.

In addition, in both of McCray’s cases the District Court held evidentiary hearings and ruled on the merits.

The Court of Appeals reversed the District Court and also reached the merits remanding the cases to the District Court for determination of whether Burrell and Smith may avail themselves for qualified immunity and good faith defense.

Thurgood Marshall:

Mr. Morgan may I back of a minute?

What authority that says Maryland Commission had to enforce its ruling?

Charles F. Morgan:

Where, are the Commission under the statute has no enforcement authority whatsoever.

Thurgood Marshall:

They could issue an injunction, could they not?

Charles F. Morgan:

No, Your Honor.

The only thing that they can do is make a recommendation to the Secretary of the Department of Public Safety and Correctional Services who would then enforce the recommendation, if he saw proper to do something.

Thurgood Marshall:

What if they wanted to?

Charles F. Morgan:

Well he has the authority under the statute to review all.

Thurgood Marshall:

There is no compulsion?

Charles F. Morgan:

There is no compulsion.

Thurgood Marshall:

I mean you could not — the commission could not change what was going on in the penitentiary.

Charles F. Morgan:

No, Your Honor, not the Commission directly.

It only makes a recommendation to the Secretary.

Warren E. Burger:

What is the fact, what is the history of it?

Do they or do they not make corrections pursuant to recommendations?

Charles F. Morgan:

To the Prison System?

Well, Your Honor, I do not think there is anything in the record that reflects that one way or another.

There were some testimony taken that in one particular case where in fact McCray had gotten relief from the Grievance Commission which had been affirmed by the Secretary on the question of whether he should be present when his cell was searched.

The evidence indicated at the hearing that directive of the Commission had never been enforced by the Maryland Penitentiary and that the excuse that they used was it they had shortage of manpower.

Charles F. Morgan:

That is the only example that I know of in the record.

No purpose would be served in as much as McCray’s case have already been ruled on the merits in having him go back to the state administrative remedy at this late stage in his cases.

The John Washington’s case against Officials of Maryland’s Patuxent Institution for denial of medical treatment is also a claim for damages.

He requested declaratory relief in his per se complaint, but the declaratory relief was only to the extent necessary to achieve an award of damages on the declaration.

The Inmate Grievance Commission again cannot provide the relief requested to Washington because it has no power to award damages, and therefore, it again is an inadequate administrative remedy in his case.

William H. Rehnquist:

Mr. Morgan did we not have that sort of bifurcation in Preiser to where it was clear that damage ream or the damage claim of a prisoner could be retained on the docket of the District Court, but that his claim for other relief might have to go through state exhaustion?

Charles F. Morgan:

Yes sir.

I think that was implicit in Preiser and perhaps even discussed there, but the circumstances are quite different here where is no request for equitable relief being made in any of these cases.

The only request for relief is for damages.

In addition to the fact that the Grievance Commission cannot award the relief to Washington that he wants, Washington was released from confinement from Patuxent in 19 —

Byron R. White:

Involved I take it as a predicate to the damage award a declaration of some breach of Federal law?

Charles F. Morgan:

It would require a finding of fact by the District Court.

Potter Stewart:

Determination at least.

Byron R. White:

Determination that they was a violation of Federal constitutional right?

Charles F. Morgan:

That would be required in the District Court, yes sir.

In addition to the fact that McCray cannot be awarded the relief he seeks by the Grievance Commission.

He is been released from Patuxent and by the terms of the Grievance Commission statute, he can no longer file a complaint with the Grievance Commission.

So we would suggest that the issue of exhaustion in McCray’s case is moot or in Washington’s case is moot at this time.

The fourth case before the Court that of James E. Stokes against Official’s of the Maryland’s Penitentiary, alleging that the Institution’s procedures and standards for censorship of literature, prisoners may read and receive are unconstitutional, should also be decided by the Court on narrow grounds.

In his per se complaint Stokes sought damages and injunctive relief.

For purposes of his damage claim, again, the Inmate Grievance Commission is an inadequate state remedy and as we indicated in the supplemental brief which respondents filed because of two recent judicial decisions which directly affect Stokes, he no longer finds it necessary to pursue his claim for equitable relief when his case returns to the District Court.

Stokes is authorized thus to state here today, that he will he only request damages when his case again reaches the District Court.

He has been transferred from the Maryland Penitentiary to Patuxent Institution where he is now committed as a defective delinquent for an indeterminate sentence under an order by a Judge of the Baltimore City Circuit Court.

Although that decision has been appealed by the state, Stokes has no present interest which is effective by the Maryland Penitentiary Censorship Regulations.

In addition, the Identical Constitutional claim made by Stokes to the regulations at the penitentiary has been decided by District Court Judge Kaufman in another case filed by another penitentiary prisoner.

Whatever the outcome of the state’s appeal in that case, Stokes’ equitable claim will be resolved there.

William H. Rehnquist:

What if on the state’s appeal that was reversed?

Charles F. Morgan:

Well, Your Honor, we are not saying that the decision in the Hopkins case which is the case I was referring to will necessary rule in Stokes’ favor, but it will resolve Stokes’ issue one way or another.

The issue is identical, Your Honor.

Stokes is claiming that the standards for Censorship of literature to Penitentiary and also the due process safeguards in connection with the censorship decision making were inadequate and denial of due process.

William H. Rehnquist:

So you say that, however, the Court of Appeals rules on it, it will either does — a decision in favor of the appellant there will be unfavorable to your client, a decision in favor of the appellee will be favorable to him and he will be bound and either then?

Charles F. Morgan:

He will be bound by that except with regard in his damage claim which applies only to his specific instance of being denied specific literature several years ago.

For all of these reasons under the facts of the cases before the Court, Maryland does not provide an adequate administrative remedy for these plaintiffs.

There is another reason why the Court should not decide the broad question of policy raised by the state.

If Section 1983 is to be amended by adding an exhaustion of state administrative remedies requirement, that amendment should be made by legislation and not by judicial decree.

The state in asking the Court to resume the – the state is asking the Court to assume the role of Congress.

In fact, the state’s on argument leaves inescapably to the conclusion that any fundamental change in the scope of 1983 should be made by Congress.

Lewis F. Powell, Jr.:

Mr. Morgan.

Charles F. Morgan:

Yes, Your honor.

Lewis F. Powell, Jr.:

Why do you say that only Congress could make some interpretation of Section 1983?

Charles F. Morgan:

Well, Your Honor that was exactly the point I was about to develop if I can carry through with it.

Lewis F. Powell, Jr.:

Why?

Charles F. Morgan:

Why is Congress –?

Lewis F. Powell, Jr.:

Why do you say that we lack power to reinterpret if we decided to do it, 1983 prior to 1963 in Monroe against Pape.

This was certainly an unsettled issue at best?

Charles F. Morgan:

Yes, Your Honor.

The position that we take with regard to that is that in Monroe versus Pape, this Court Interpreted Congressional intent behind Section what was then 1979 which is now Section 1983, that Congressional intent was stated in Monroe v. Pape in has been stated by the Court in decision subsequent to that.

The Congressional intent was that the state remedy be supplement — that the Federal remedy be supplementary to the state remedy and that the state remedy need not be first exhausted before the federal remedy may be invoked.

Now, what the state is suggesting in this case is that this Court reinterpret the intent of Section 1983.

There is no further evidence before the Court that the interpretation of legislative intent in Monroe versus Pape was incorrect.

The state’s position is that because Maryland has inadequate Inmate Grievance Commission that now the Court free to disregard the intent that was expressed in Monroe versus Pape and to create an exhaustion requirement.

Now, our position —

Lewis F. Powell, Jr.:

(Inaudible)Mr. Morgan.

Charles F. Morgan:

More directly answering your question.

Lewis F. Powell, Jr.:

Well, may I interrupt you because it might show in your answer.

I can understand how you could argue with some force that there are precedents of this Court that should not be reconsidered, but you are not suggesting, are you, that we have no authority to reconsider them?

Charles F. Morgan:

I am not suggesting that the Court has no authority, Your Honor.

Lewis F. Powell, Jr.:

What are you arguing then?

Charles F. Morgan:

What we are arguing is that this would be an improper role for the Court to take.

Lewis F. Powell, Jr.:

An improper?

Charles F. Morgan:

An improper role for the Court to take, particularly with regard to prisoner grievance mechanism for some of the reasons that I would like to express if I may.

What the substance and I think this goes more directly to your question, Your Honor, what the substance of the petitioner’s argument is, is that because times are now different than they where in 1871.

An exhaustion of remedies rule for 1983 is now appropriate.

It should — this argument, however, should made to Congress and not to the Court and the reason is that if times have changed as the state argues it is Congress which should reevaluate the policies underlying its 1871 determination that their should be no exhaustion of state remedies in 1983.

For example —

William H. Rehnquist:

What is your authority for saying that same Congress made a determination in 1871 that there should be no exhaustion of administrative remedy?

I mean, does that come from legislative history?

Charles F. Morgan:

Your Honor, I think that comes from a long line of decisions of from this Court beginning with Monroe versus Pape in extending through Damaco in Bicknese (ph) and District of Columbia versus Carter and all the cases that I have cited.

William H. Rehnquist:

You can argue on two different grounds here and if it strikes may that perhaps, at least I do not understand it to being firmly committed to one or the other or to perhaps both.

You can say that regardless of what the prior cases of the Court have said even if we are writing on clean slate, you go back to the legislative history and its clear that Congress did not intend that administrative remedy be exhausted or you can say that even though there might be doubt as to legislative history the precedents of the Courts say that administrative remedy should not be exhausted.

Now, do you assert both those grounds or if not, which one?

Charles F. Morgan:

Well, we assert that the question of what legislative intent was behind 1871, is no longer open.

That, that question has been decided by this Court in Monroe versus Pape and reaffirmed over and over in the other decisions.

William H. Rehnquist:

Even though in Monroe versus Pape where the Court was confronted only with judicial remedy?

Charles F. Morgan:

Well, that is true, only judicial remedies in that case, Your Honor, but —

William H. Rehnquist:

We are not bound by dicta, are we?

Charles F. Morgan:

No sir, but past Monroe versus Pape there was a serious of decisions that decided that the intent of the 1871 Act applied not only to judicial, but also to administrative remedies and also that it applied to remedies which where available inadequate that the fact of adequate available remedies made no difference in what the Congressional intent was and having established that as the Congressional intent, it would be improper for in the absence of some evidence that there was different Congressional intent before anyone, besides Congress to reevaluate the policies that underly Section 1871 Act.

We would suggest that this was a particularly inappropriate time for the Court to Act on this because at this very moment there are two Bills pending before Congress.

William J. Brennan, Jr.:

(Inaudible) appropriate to Mr. Justice Powell, you suggested lack of power.

Now, which is your point?

Charles F. Morgan:

Well, Your Honor I think it is really the proper term is inappropriate.

I think what I am suggesting is that under the circumstances that of what the state is arguing in this case that this Court should give proper deference to the role of Congress in amending Section 1983.

As an example, I think the way in which the Court handled Preiser versus Rodriguez, where the Court gave specific deference to explicit Congressional intent in a habeas corpus statute and thereby carved out an exception to Section 1983.

There was no exhaustion requirement attached to 1983 because of explicit Congressional intent that there should be certain cases which cannot be brought under 1983.

And then under those circumstances, there should be exhaustion and it seems to me that that is what we arguing.

That there should be — that proper difference given to what the Congress intended, especially in this case where the Court has already found what Congress intended in Monroe and all the cases that followed.

As I was mentioning, there are two Bills presently pending before Congress, Congressman Railsback has introduced HR 12008 and Congressman Rodino has introduced HR 12230 and both of these Bills are now pending before the House Committee on the Judiciary.

If the Bills are enacted they would amend Section 1983 to impose an exhaustion of state administrative remedies requirement for state prisoners.

In addition to the broader policy question —

Potter Stewart:

At present where are they, both in the Committee?

Charles F. Morgan:

MYes sir.

They are both before the House Committee on the judiciary.

Potter Stewart:

Supposed to be introduced in the House, one by the Chairman of the Committee?

Charles F. Morgan:

A one by Mr. Rodino and one by Mr. Railsback.

Potter Stewart:

Any hearings on them?

Charles F. Morgan:

I do not know sir.

I do not believe so and I believe there is also another Bill that is been introduced by a Congressman Kastenmeier which does not specifically speak to exhaustion of administrative remedies, but I believe has provisions in it which deal with the problem that the District Courts have in handling prisoner complaints.

John Paul Stevens:

Mr. Morgan do those Bills merely provide for exhaustion in prisoner cases or in cases generally?

Charles F. Morgan:

I can speak to the Railsback bill specifically.

That specifically is directed to prisoners and I believe Rodino’s Bill is also specifically directed to prisoners.

Byron R. White:

What do you suppose the underlying — what do you understand the underlying argument for exhaustion to be, what is the rationale that is been suggested as it to avoid the decision of the constitutional issues, is that it or what is it?

Charles F. Morgan:

I am sorry sir, do you mean the rationale for exhaustion —

Byron R. White:

What is the rationale as you understand that is being offered for a requirement of exhaustion?

Charles F. Morgan:

I think what the state is saying in this case, Your Honor, is that because the state of Maryland has developed what they say is an adequate state administrative remedy that this Court should then require state prisoners to exhaust that remedy.

Byron R. White:

Although concededly there is no damage remedy and concededly I suppose the administrative processes in Maryland prison is not going to decide a constitutional question?

Charles F. Morgan:

I think that in the way in which the Inmate Grievance Commission is setup definitely it is far from any guarantee that the Inmate Grievance Commission is going to be adequately able to solve constitutional questions.

Byron R. White:

The administrative procedures usually do not declare some prison regulation unconstitutional for example?

Charles F. Morgan:

Well, I think at most what the Grievance Commission could do, would be to declare that a prison regulation is no longer meet sound correctional standards, but I do not think it is qualified to declare something unconstitutional.

Byron R. White:

Is it not the most that exhaustion would produce is a remedy that would perhaps obviate a result to the Federal Court?

Charles F. Morgan:

I think that is one of the primary policies that underly an exhaustion requirement in any circumstances in a sense —

Potter Stewart:

First of all that the whole about these potential losses would disappear through?

Byron R. White:

Just go away.

Potter Stewart:

(Voice Overlap) combination in the administrative remedy state that they never, therefore get to Court and secondly that those who did get to Court would perhaps have saved the judge time because the some of the issues might have been eliminated or at least and other is refined and the position of the state would be better known and the administrative procedure would have served to separate some of the weak from the champ.

I suppose those the two — would be the two grounds for this for this proposed Bills and for the position of the —

Charles F. Morgan:

It would seem to me Your Honor that — it would seem to me that the fundamental purposes of exhaustion should be to create a record for the District Court and also to allow the agency an opportunity to correct its own errors.

Potter Stewart:

Solve the problem before they got to Court?

Charles F. Morgan:

And I think that those two —

Byron R. White:

Are you suggesting that in the Federal Court that there would not be a de novo determination based on a hearing?

Charles F. Morgan:

No sir.

Byron R. White:

You would not think you would be bound by the record?

Charles F. Morgan:

No sir, we have suggested just the opposite in our brief.

Warren E. Burger:

(Inaudible) in Federal District Court would be aided by whatever record was made, not limited to it?

Charles F. Morgan:

Yes sir.

What I was leading to was, in the habeas corpus situation for example, where Congress has enacted specific statute and says specifically how the District Court may use the state court proceedings.

Now, there was no such statute in existence now as to how the District Court can use state administrative remedies proceedings.

Byron R. White:

Now, that if he decide objected to the use of the any part of the record, there might be some trouble if the judge nevertheless used it?

Potter Stewart:

(Inaudible) some might be admissible, some might not?

Charles F. Morgan:

We take the position under the Grievance Commission statute as it presently exists without enabling legislation from Congress, the District Court simply cannot use the record of the administrative agency proceeding as anymore than a matter of interest to read the facts of what perhaps happened, but as far using it in the decision making process, we would say that would be inappropriate in the absence of the legislation and more particularly we believe that legislation is particularly — that kind of a requirement should not be imposed without legislation because really it is only congress who is able to evaluate all the interests that are involved.

The state’s interest, the Court’s interest and the prisoner’s interest in setting up what would be an effective remedy that would serve the purposes of allowing the agency to correct its own errors and also serve the purposes of the District Court and no —

Warren E. Burger:

Do you think the Court directed the Federal Bureau prison showing that in one year after they inaugurated internal grievance procedures, prisoner’s complaints to the Federal District Courts dropped by approximately one-third?

Charles F. Morgan:

I have not seen that report, Your Honor.

Potter Stewart:

They have the statement of the Director of the prisons in the appendix to your brief.

Charles F. Morgan:

Well, Your Honor that —

Potter Stewart:

(Inaudible)

Charles F. Morgan:

That was a dissenting opinion.

Mr. James Bennett is a member of the Commission in Maryland and I think his dissenting opinion is particularly relevant to the situation before the Court because in that opinion he describes the really chaotic decision making and fact finding process of the Inmate Grievance Commission and certainly that kind of the a remedy is not the kind of a remedy that would serve any valuable purpose to the District Court.

Lewis F. Powell, Jr.:

When did the Commission commenced the function?

Charles F. Morgan:

I think it was 1971 legislation that set up the commission and I think they began to function about a year later or less.

Lewis F. Powell, Jr.:

Does the record show how many cases that the Commission has processed to final decision?

Charles F. Morgan:

In our supplemental brief, I think that we brought those statistics up to date, Your Honor.

Lewis F. Powell, Jr.:

You recall generally what they are?

Charles F. Morgan:

I think that they are referred to — certainly that the record of the case at the time there was an evidentiary hearing in the Court contained that information and I think it is been updated through our supplemental brief and also through some of the materials filed by the state in the case.

Lewis F. Powell, Jr.:

Is there any indication as to what percentage of the final decisions of the Commission in fact are taken into the Federal Court?

Charles F. Morgan:

No, Your Honor.

I have not heard that Mr. — the Attorney General today stated the figure which I have not heard before and I —

Lewis F. Powell, Jr.:

I heard him state that —

Charles F. Morgan:

I do not believe that figure is in the record and I have not heard it from any other source.

I do know that as far as the most recent performance of the Grievance Commission in the supplemental brief that we filed, we indicated recent statistics that indicate in only one out of a hundred cases of prisoner complaints does the Grievance Commission grant relief.

Now that relief is granted after a hearing and after final review by the Secretary, that is during the past four months period.

Earlier and this is reflected in the record for the case and it is on page 80 of our brief, the Attorney General made reference to the allegation that the grievance commission informally resolves many of the complaints that come before them, and therefore, there is no need for a hearing.

Charles F. Morgan:

However, in discovery in this case we asked the Executive Director about specific cases over I believe a 90-day period which he described is a typical day, a typical period of time for the Commission and during that period of time there were 45 complaints administratively dismissed and only four of those were complaints they were informally resolved to the satisfaction of the inmate.

So we would suggest that of that 55% or 65% of the cases which are administratively dismissed only a very small percentage of those, perhaps 10% or less are actually resolved to the satisfaction of the prisoner.

That when added to the fact that only 1% of those which ultimately go to a hearing indicates a very, very low number of cases.

Harry A. Blackmun:

What do you mean by satisfaction of the inmate?

Charles F. Morgan:

Your Honor, that term was used by the Executive Director in his deposition and I think again that indicates a difficulty in trying to impose an exhaustion requirement to 1983 because it is difficult to say what it means to the satisfaction of the inmate.

It does not mean that he will no longer to pursue his claim into Court.

It does not mean that it is to a satisfaction within the confines of grievance commission’s jurisdiction which means that he will go on for damages or what.

It is really extremely difficult to say what the state means by the Grievance Commission having responded satisfactorily to an inmate.

John Paul Stevens:

Mr. Morgan, do you know if those statistics are very different from the percentage of cases that resolve satisfactorily to the inmate that are filed in Federal Court?

Charles F. Morgan:

No sir, I do not know what the statistics are on that?

John Paul Stevens:

It is clearly low percentage there are to, I believe?

Charles F. Morgan:

I imagine that it is low, Your Honor and I was not suggesting the figure to show that a lot of prisoner complaints are meritorious and the Grievance Commission is turning them down.

I brought that figure to the attention of the Court to indicate that giving the agency in opportunity to correct its own action is not what the Grievance Commission is doing.

It is only correcting its own action and one out of a hundred cases.

Potter Stewart:

Well, it is finding that the original action need not be corrected.

Is that fair statement from its point of view?

Charles F. Morgan:

Perhaps, yes sir.

If I may, I would like to direct just the last few minutes that I have in the case to the merits of McCray’s claims.

The facts of these cases are set forth in the brief and basically the important facts are that McCray was thrown — placed into isolated confinement on two separate occasions.

The conditions of isolated confinement in one case, the Burrell case were particularly severe and more so than in the Smith case.

In that situation he was placed in a small cell naked without any bedding, without any mattress, the cell was cold, there was no toilet in the cell, he was denied all elements of personal hygiene for two-day period.

He was even denied toilet paper during that period of time.

His toilet was at 6 to 8 inch in diameter hole in one corner of the cell with an iron grating over which was encrusted with the excrement of prisoners who would been in that cell before him.

He remained there for two days without ever receiving any kind of counseling, medical attention or professional help from a psychiatrist or a psychologist.

And the basis of our argument is that although there was perhaps reason to have placed McCray into an isolated confinement situation because he needed to be isolated from the rest of the population to avoid creating a disturbance and for his own protection, our claim is that the conditions of isolated confinement and the length of isolated confinement from McCray were arbitrary under the circumstances and a violation of the Fourteenth Amendment.

The directive — the regulation of the Maryland Prison System provided a liberty interest that McCray had in not being thrown into isolated confinement for arbitrary reasons.

In addition to that Wolf versus McDonald seems to establish that some minimal form of due process is available to a prisoner before going into solitary confinement.

Under these circumstances, we say that that McCray was not entitled to a Wolf versus McDonald hearing, but what we do say is that he was entitled to a minimum of procedure in order to assure that the conditions of confinement and the length of the confinement were necessary and we say that the rule of reasonableness in this case is Maryland Penitentiary’s own Administrative Director.

That the Court of Appeals gave proper deference to Maryland Prison Officials by suggesting that that was the minimum constitutional standards.

In answer to the question posed earlier by, Your Honor, we are not suggesting that the mere violation of a state regulation arises — raises a constitutional claim in this case.

Charles F. Morgan:

We are saying that first of all the regulation serves two purposes in the case.

First of all, it establishes a liberty interest on the part of McCray, an interest that cannot be deprived without some kind of a minimal procedure to assure that it is not arbitrarily deprived and second the regulation provides a standard for what is minimally reasonable under the circumstances.

William H. Rehnquist:

I assume you can argue too since the state has been willing to adopt it, it does not unreasonably frustrate the goals of Prison Administration?

Charles F. Morgan:

That certainly is our position, Your Honor and in the brief we cite to a number of other state and federal prison regulations which are similar or even more restrictive of prison officials, certainly what Maryland has imposed on its own Prison Officials is the bare minimum under these circumstances, McCray did not get it.

Byron R. White:

(Inaudible) understand that I think you would be here even if you agree that the prison procedure, the grievance procedure was as adequate as a grievance procedure could be, you would still say that there is no need to exhaust it?

Charles F. Morgan:

Yes sir, we take the position of the adequacy of the remedy is not the controlling factor.

The controlling factor is the policy argument which underlies Section 1983.

Byron R. White:

And that even though a good inadequate grievance procedure might screen out or obviate the necessity of considering 75% of the cases, nevertheless the plaintiff should be able to directly to file under 1983?

Charles F. Morgan:

We believe that, that kind of an exhaustion requirement cannot at this point be grafted onto the Civil Rights Act without Congressional Amendment.

John Paul Stevens:

Mr. Morgan you also rely on the Eighth Amendment in your Constitutional claim?

Charles F. Morgan:

Yes sir, we do and the only reason I did not direct myself to it is because the red light was on.

I will be glad to do so.

Thank you.

Warren E. Burger:

Mr. Attorney General.

Francis B. Burch:

May it please the Court.

Very quickly I would like to point out Mr. Justice Rehnquist that in our view there was no administrative remedy available in 1871 when the 1871 Act was passed.

So obviously Congress could not have been addressing itself to administrative remedies.

Secondly, as I said the 753 of the Habeas Corpus Act which was passed in 1867 as construed by the Supreme Court in Ex parte Royale held that it was discretionary with the Court as to whether exhaustion shall be required.

At the least that is what should be held in this case that is discretionary with the lower court as to whether there is such an adequate administrative remedy that exhaustion should be required.

Byron R. White:

What do you think the basis for the requiring exhaustion is Mr. Attorney General?

Francis B. Burch:

The basis for requiring exhaustion is to give the opportunity to the Court, first of all it is federal comity — Federalism in comity as between national system and the state system.

Byron R. White:

Yes.

But if he is claiming a denial of constitutional rights, are you suggesting that your administrative procedure would entertain a denial of constitutional rights?

Francis B. Burch:

I would say that the same situation would prevail with respect to the 1983 cases as prevail with respect to the habeas corpus cases.

There is certainly is far greater reason to not permit exhaustion of remedies.

Byron R. White:

Certainly your state the courts are bound by the federal constitution and I —

Francis B. Burch:

That is exactly right and so our administrative agencies.

Byron R. White:

Well I know, but you do not usually act — you do not usually see administrative agencies entertaining claims of constitutional violation?

Francis B. Burch:

Oh! Yes they do, Your Honor.

We will so advise them through the Office of the Attorney General that they must construe that and you got —

Byron R. White:

So they are going to be adjudicating, you can present claims of Eighth Amendment claims for example?M

Francis B. Burch:

They certainly could.

They have the right to counsel.

Counsel can raise any issue before the Administrative Commission.

We and the Office of the Attorney General represent the Commission.

Byron R. White:

Well, the administrative agency for example could not declare one of the regulations that have been issued unconstitutional at all?

Francis B. Burch:

They may hold that release should be granted because it would appear that the particular regulation is unconstitutional.

They may hold that relief may granted.

Byron R. White:

In the administrative —

Francis B. Burch:

But there is also a right of appeal to the state courts and in the last analysis after there has been the sifting out, there is the opportunity to go into the Federal Court under 1983.

Thurgood Marshall:

General — Mr Attorney General you consider this an adequate remedy

?Three members of the Commission found a grievance lacking in (Inaudible) and order the case dismissed. This member was erroneously listed as concurrent in the result.

This was apparently due in part to the fact that there was as usual no discussion of the case among the members prior to they drafted its order and also to the general confusion, din and noise surrounding the proceedings, held in the basement room that had been scooped out during the construction of the Maryland Penitentiary in 1804.

Francis B. Burch:

Well yes, Mr. Justice Marshall.

I do not know what you are reading from.

Thurgood Marshall:

I am reading from no less in James B. Bennett whom we all know.

Francis B. Burch:

Right, Mr. Bennett.

I know Mr. Bennett.

Thurgood Marshall:

Well, do you think I said I could?

Francis B. Burch:

I have no knowledge of the particular that is left.

Thurgood Marshall:

Well, it is I the brief of respondents.

The —

Francis B. Burch:

Is this with respect to the McCray case?

Thurgood Marshall:

It is in there.

Francis B. Burch:

With respect to the McCray case?

Thurgood Marshall:

Robert Burrell et all versus Milk McCray et all, number 75-44.

Francis B. Burch:

Well, I can only say that that certainly his opinion and I am not into position to comment upon that Your Honor.

If that is Mr. Bennett’s opinion, that is his opinion, but we say that at least the Court ought to give the District Court the opportunity to make a determination as to whether or not the adequate — the remedy is adequate.

Whether it be in this case or whether be in any other cases or whether be in any cases throughout the United States because some relief must be granted to the states and to the Federal Courts if we are going to see if there is an expertise handling of all of the state prisoner complaints throughout the United States.

And we say that unlike what Mr. McCray’s Attorney has said, we say that actually there are four more — far more cases where there are favorable decisions in favor of the inmate by virtue of the use of the Inmate Grievance provisions than there are otherwise because of the filing of the 1983 cases.

Francis B. Burch:

I would ask the Court please to look at Lane versus Wilson in 307 U.S. which is not cited in our brief and Carrington versus Edwards in 264 F. 2nd because I think they give the background historically of what the 1983 cases permitted with respect to administrative remedy.

Thank you.

Warren E. Burger:

Thank you Gentlemen.

The case is submitted.