Johnson v. Avery

PETITIONER:Johnson
RESPONDENT:Avery
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 40
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 393 US 483 (1969)
ARGUED: Nov 14, 1968
DECIDED: Feb 24, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – November 14, 1968 in Johnson v. Avery

Earl Warren:

Number 40, William Joe Johnson versus Areas Avery, Commissioner of Corrections.

Mr. Warden.

Karl P. Warden:

Mr. Chief Justice and may it please the Court.

I’m counsel for William Joe Johnson who is a prisoner in the Tennessee State Penitentiary in Nashville, Tennessee.

As of the time of this argument today, William Joe Johnson has served approximately three years in solitary confinement or in maximum security or in a segregated environment within the penitentiary.

This confinement is over and above that confinement called for by his sentence, which is a life sentence for the crime of rape.

The reason for this extraordinary confinement is because he has violated one rule of the Tennessee State prison system is that rule is here being challenged today, and that rule is that no inmate will advice, assist, or otherwise contract to aid another either with or without a fee to prepare writs or other legal matters.

The United States District Court that first heard this case determined that his confinement was arbitrary and capricious and that it was in violation of Title 28 United States Code Annotated Section 2242 and it was in violation of the United States Constitution.

The Court of Appeals reversed the District Court.

Our argument here today seeks to have the United States Court of Appeals reversed to have further enforcement of this prison rule ended and to have William Joe Johnson return to the general prison population and these lib — these unnecessary restraints on his liberties ended.

Now, the basis for our argument is five-fold.

The two major points that we wish to make are that, first off, the State of Tennessee, by enforcing this prison rule and by providing no alternative assistance, has effectively blocked access to the Courts by those prisoners who are indigent and inarticulate or illiterate, and that to so prevent these people from being heard as a violation of due process, a violation of equal protection, and a violation of the First Amendment Freedoms of Speech and right to protect, right to petition for redress of grievances.

And, our second principle point is that this prison regulation is not a proper exercise of the state’s limited power to regulate the practice of law for two reasons.

One, this is not the practice of law and, two, that even if it should be considered the practice of law, it’s beyond the power of the strait — of the state to restrict this particular kind of practice.

Our further points are that Title 28 Section 2242 of the United States Code, annotated, reflects the ancient common law right of one layman to prepare, sign, and verify petitions of habeas corpus for those who cannot help themselves.

And, the final two points, are that the petitioner does have standing to raise these issues and that was the holding of both the District and the Court of Appeals and, finally, that this is a proper case and circumstance for Federal Courts to intervene with state prison management.

And, apparently, this has been agreed to by the State of Tennessee in its supplemental brief provided that the Court finds that these regulations are in violation of federal right.

Now, as to our first point, it’s clear that a prisoner who can employ an attorney will be fully and well-heard by whatever Court he wishes to petition, but it’s equally clear that if this prisoner is indigent, that he only has then four alternatives.

One of these is to be able to talk some lawyer into representing him for free.

The second is to proceed pro se, the third is to get help from someone untrained in law, and the fourth is just to forget about it all together and let his claim go by the Boards.

Now, as to the first of these alternatives, if he can talk a lawyer into taking a case, all of us who practice law know what happens to the attorney who agrees to help one indigent prisoner, he’s immediately inundated with letters from not only that prison, but from every prison in the country requesting similar aid.

Abe Fortas:

Well, aren’t there some states which provide legal services for prisoners?

It seems to me that — was it California’s brief, amicus, here?

Karl P. Warden:

California has an amicus brief here, Your Honor.

I do not believe that California provides counsel for indigent prisoners.

Abe Fortas:

But some assistance?

Karl P. Warden:

They provide the assistance of prison guards and chaplains, apparently, Your Honor.

Abe Fortas:

And the clerical stuff, do they — don’t they?

Karl P. Warden:

They apparently, yes, sir.

Potter Stewart:

And, apparently, the Courts have cooperated by setting up these forms to be with check lists.

Karl P. Warden:

Yes, Your Honor, although —

Potter Stewart:

Right.

Karl P. Warden:

Although, I expect to argue a bit today that these forms are in fact not much better than the no assistance at all that the State of Tennessee provides.

Potter Stewart:

Who would might be?

Karl P. Warden:

Your Honor, in the event that this attorney does receive these letters, what happens ultimately is that the claims — the just claims and the unjust claims are like all going away splash kit.

Now, while we ought to applaud an attorney who is willing to help an occasional indigent prisoner.

We still cannot rely on causal or whimsical charity to preserve the constitutional guarantees of persons and fritz in the United States and it’s not a sufficient answer here to say that prison authorities will help these people.

First off, there’s no showing that these prison authorities, the guards, chaplains, clerical help, or any more competent to provide assistance that is a fellow inmate.

And, secondly, it’s clear that the prisoner knows full well that the interest of his keeper and his own interests are not absolutely identical.

There is and there always will be a real credibility gap between the inmate and his keeper, and the prisoner is going to want someone he can turn to, someone he can talk to, someone he can trust, if not his lawyer, then his friend.

And, his friend is much more likely to be a fellow inmate than it is to be his keeper.

And, I think that millions and millions of dollars that the legal profession and the government has spent in the past few years trying to bridge the communication gap between the poor and the Courts, the legal profession, by moving law offices out in the neighborhoods and by allowing forms of lay intermediary assistance all show that this credibility gap here is a very real thing and ought to be recognized.

And, finally, on that point as on the side, if it is the practice of law for an inmate to help write petitions, why is it not the practice of law when it’s done by a prison guard or a chaplain, as apparently is done in California?

The activities of —

Potter Stewart:

The difference, I suppose it’s — it doesn’t go to your question, your rhetorical question, but the practice is, is it not, that people who indulge in the activities, in which your client was to indulge, actually charge their fellow inmates everything that’s traffic or bare and, presumably, prison employees do not.

Karl P. Warden:

Your Honor, there is not one shred of evidence in this case that my petitioner has charged anyone for his services.

I don’t deny that prisoners could charge.

I would deny that it would be a proper thing to do, of course.

The activities of the petitioner here are attacked as being the practice of law and it’s said that the state has the right to regulate the practice of law and that, since petitioner was practicing law, he can be properly stopped by the state prison authorities.

Well, we claim first that this is not the practice of law, that there was no claim here whatsoever to represent these prisoners in Court that there was no pursuit of these cases beyond the minimal help of helping them articulate what their claim was, that he did not stand and verify these petitions for the inmates, that he returned these petitions to the inmates and they signed them and verified them themselves even if they had to sign it with an “X” as happened in some instances.

Abe Fortas:

Suppose he set up an office in Nashville and held himself out to do precisely this.

Don’t you think, by association, it’d be a kind of concern by whether that was a practice of law?

Karl P. Warden:

Yes, sir.

I’m absolutely certain that the National Bar Association would be concerned.

They’re a little bit fearful about me being up here today, as a matter of fact but —

Byron R. White:

Mr. Warden, the issue is now, as the — what might certainly say on Section 2242.

Particularly, it’s likely toward about somewhat — actually, what we have is not — does the issue before us have merits?

Karl P. Warden:

Your Honor, I think that that’s only one of the points before us today.

I think there’s a very real question here of First Amendment guarantees and I think that goes beyond the question of — raised directly by 2242.

I think that 22 —

Byron R. White:

What if we would say “well, perhaps, we can agree with this” as a matter of interpretation that was held in the District Court”?

Karl P. Warden:

The District Court did that, yes, sir.

Your Honor, but they also found that this was an arbitrary and capricious act on the part of the federal prison authorities, which was a denial of — as equal protection to those persons who could not articulate their own claim.

Byron R. White:

And the next is we have to reach the constitutional claim?

Karl P. Warden:

No, Your Honor, I don’t think you would have to reach the constitutional claim.

But, of course, we had to raise the constitutional claim because that’s one facet to our argument.

I don’t’ think you have to reach that in order to decide this case but, if I may say so, sir, I think you ought to.

Byron R. White:

Well, you’d have to reach it in the — they’d have to reach it if we didn’t agree with the 2242.

Karl P. Warden:

Yes, sir, you certainly would, in order to adopt our view of the case.

Byron R. White:

Mr. Warden, this came up in the form — well, whatever the form that took position, this has been treated all along as to the petition for habeas?

Karl P. Warden:

Yes, sir, it has.

Yes, sir.

Byron R. White:

Is he a state prisoner?

Karl P. Warden:

He’s a state prisoner, Your Honor.

Byron R. White:

That’s how he gets 2242 into this.

Karl P. Warden:

I suppose so, Your Honor.

All William Joe Johnson has done in this case is to help these men articulate those things that they would have said for themselves if they had been able to say them for him — themselves.

Byron R. White:

It’s the crux of the argument.

Karl P. Warden:

Sir?

Byron R. White:

Those standings, that, I gather, reads that —

Karl P. Warden:

Sir —

Byron R. White:

The counsel had standing.

Karl P. Warden:

Sir, both the Federal District Court and the Court of Appeals agreed that he had standing.

Byron R. White:

That’s not challenged here.

Karl P. Warden:

It’s raised in the California amicus brief.

It was not raised by the State of Tennessee.

Byron R. White:

Why doesn’t he understand it?

Why can you —

Karl P. Warden:

Yes, Your Honor, I will try to.

Over and above the question of whether the two lower Courts agreed that he had standing, he’s in solitary confinement now for the violation of this rule and this rule is the one we’re here challenging today, and in order to challenge this rule today we have to show why it is in violation of the constitutional rights of these indigent illiterate prisoners.

Byron R. White:

How long have you been estoppel?

Karl P. Warden:

For almost three years.

Potter Stewart:

That’s not — is that contiguously or abound?

Karl P. Warden:

He was turned loose at the end of the time that the District Court decided this case, Your Honor, and I’m going outside of the record, he was put in the day that the Court of Appeals decision came down.

Now, there were breaks in this total three-year period because he would promise he wouldn’t do it anymore, and they’d turn him loose and he’d do it again.

Potter Stewart:

That’s what I understood from the brief.

Karl P. Warden:

Yes, sir.

He wasn’t very trustworthy about that sort of thing.

Potter Stewart:

He was persistent in asserting his claimed rights, I guess.

Is he responding to you?

Karl P. Warden:

This man comes closer, Your Honor, to being a modern day Don Quixote than anyone I ever heard of.

It seems to me that we have never doubted the common law right of one layman to petitioner or another layman when the one that’s being held captive could not speak for himself and when the one who’s doing the petitioning is not an officious intermeddler.

At most, William Joe Johnson here was a lay intermediary.

All he ever did was call the Court’s attention to these men.

He did not solicit this.

He did not charge.

He did not benefit in any way, except the satisfaction that one human being gets from helping another.

But, even if this Court should find that his activity was the practice of law, and we vigorously maintain it was not, still the state’s power to regulate stopped short of the power to restrict unsophisticated persons from seeking legal redress in the Courts with their claimed unlawful imprisonment.

Both Federal and State law provide a route by which an imprisoned person can petition for a release from imprisonment.

But, by effectively denying to an identifiable class of persons the right to use this law here by making the route impossible for the indigent, inarticulate, and illiterate, this post conviction remedy becomes illusory.

This is not just a deprivation of First Amendment rights, but it’s also then a denial of equal protection of the laws.

Potter Stewart:

I suppose there are, at least have been or may be, in the penitentiaries in Tennessee lawyers —

Karl P. Warden:

Yes, Your Honor.

Potter Stewart:

Graduate lawyers.

Karl P. Warden:

Yes, Your Honor, unfortunately, that’s true.

Potter Stewart:

This rule would also prevent them — of course I also would presume they have been or will be disbarred because of their conviction if it’s for an infamous crime.

This rule would not allow them either to —

Karl P. Warden:

That’s correct, Your Honor.

Potter Stewart:

Use their particular expertise.

Karl P. Warden:

No inmate would be allowed to, and the rules —

William O. Douglas:

How about that Arizona case the Court decided last term where the layman was seeking to represent an indigent?

Karl P. Warden:

Yes, Your Honor.

William O. Douglas:

He wasn’t imprisoned.

Karl P. Warden:

Yes, Your Honor.

I think that the rationale of that case would be entirely appropriate here, although this man was operating outside of an environment where there was a rule that prohibited any help at all, and that’s exactly what this rule does.

This rule does not cut off help just for illegitimate claims.

It cuts off help for all claims, and that’s the only way it can be viewed because these people can’t read, they can’t write, and the Tennessee statistics —

William O. Douglas:

Well, that was true of this defendant in this Arizona case.

Karl P. Warden:

Yes, it was, Your Honor, except that it’s my understanding that the man who filed the petition for him was not a fellow inmate but was someone on the outside.

William O. Douglas:

Well, they’re both on the outside but the problems, I would think, would be the same of illiteracy, indigence.

Karl P. Warden:

Yes, Your Honor, I think it would be.

William J. Brennan, Jr.:

You don’t cite this Arizona case.

Karl P. Warden:

No, I do not, Your Honor.

William J. Brennan, Jr.:

Well, I suppose there would be element of discipline as a consideration here that it would not have been in the Arizona case.

Karl P. Warden:

Your Honor, I think there is an interest of the state here in the fashion and how you described it in preserving order in the penitentiary, but I would say this, if I may.

I think we must always distinguish between desires and interests.

And, I’m sure that the prison authorities desire that they have a prison full of docile unthinking prisoners who don’t cause any trouble.

Now, I would like for my children back here and my students back here not to cause me any trouble and to do just exactly what I tell them to do.

But, in the long run, that would not be in my interest and it would not be in their interest, and it would not be in the interest of the society where they live.

So, I think we must distinguish these things.

Thurgood Marshall:

Isn’t it also true that this is not a question of regulating?

It’s a question of prohibiting?

Karl P. Warden:

It’s a question of absolutely prohibiting, Your Honor.

Thurgood Marshall:

Right, it’s not a question of regulating in the power.

Karl P. Warden:

If it were, Your Honor, if the State of Tennessee had provided some reasonable alternatives whereby these people that I think are being discriminated against could have had access to the Court in a realistic fashion, then we would not have perhaps had to have this case today.

Byron R. White:

Well, that’s the point.

I suppose you could very well make a case or, as an arguable case for somebody to — for the prisoner to have the right to have some help from some competent source without being forced to, or logically hold that a fellow inmate has a constitutional right to furnish it.

I suppose you’re up here claiming some right on your client’s part.

Karl P. Warden:

My client’s right derives, Your Honor, from these other people.

It’s some —

Byron R. White:

Solely?

Karl P. Warden:

No, he’s also in the solitary confinement and he’s got to de —

Byron R. White:

Well, I understand that.

There certainly is a legitimate dispute between him and the state.

Karl P. Warden:

Yes, sir.

Byron R. White:

But, is he claiming some constitutional right himself to represent his fellow prisoners?

Karl P. Warden:

He claims only this, Your Honor, that the state has not provided an acceptable alternative to his providing help for them, and that he’s being punished for doing that which the state is prohibiting.

Byron R. White:

Well, what would you say if he — if the evidence were that he not only represented prisoners, but he constantly collected money from them for it, and the rule of prison was you may help other prisoners but you may not collect money, and if you do, you’ll go to solitary confinement?

Karl P. Warden:

Your Honor, then I think he will be in solitary confinement for having collecting money.

Byron R. White:

Even though there was quite a dispute between him and the —

Karl P. Warden:

Well, sir, if I understand your question, then my answer is that they would have to have an absolute right to put him in solitary confinement for taking money.

There’s no question in my mind about that.

But, I may as well add this to it too, that even if this Court should find that there is some right to counsel at this critical stage in the post conviction proceeding here, I think there might still be a constitutional question as to whether one prison inmate could turn to a fellow inmate and say you reckon ought to go to a lawyer.

Byron R. White:

Well —

Karl P. Warden:

And if that’s sanction, then I think we’re strictly on First Amendment rights at that point and this rule would prohibit that.

Byron R. White:

Well, I understand that but, of course, that isn’t what — he did more than advice going to a lawyer.

Karl P. Warden:

Yes, sir, he did.

He wrote out these petitions by hand.

Byron R. White:

Yes, and that’s why — so, you can say as well if that’s what the state was preventing him from doing.

Karl P. Warden:

The state here has claimed a number of interests.One in prohibiting the unauthorized practice of law, one in keeping good order in the penitentiaries and I’ve spoken of that but I’d like to add this one thing.

There was no showing in this case, and there can’t be any showing, that there — that the fact that one prisoner helps another prisoner articulate his claim to a Court necessarily is going to create great disorder in a prison system.

In fact, I think it could be argued that these people who were in the penitentiary who are inarticulate, illiterate, indigent, who have no way to express these claims might very well be a greater source of disruption of the prison discipline than one that was allowed to go ahead and have his case heard by a Court.

Do you happen to know, sir, whether it’s your regulation in Tennessee or typical rights?

Karl P. Warden:

Your Honor, I am of the opinion and impression, I should say, that it is a fairly common prison regulation.

I think California has it with the little variants of the form.

When I was in Utah recently, I saw something in paper out there that said they have it.

I think New York has it.

There are a number of jurisdictions that have it.

I can’t tell you how many they are.

The state has also claimed an interest here which the prison authorities say fall on their side of the scale of balancing the interest and that is in keeping the Court dockets from being clogged.

Karl P. Warden:

What this rule prohibits was fine in equal impartiality, the legitimate claim, along with the illegitimate claim, and there certainly can’t be any kind of a showing that a legitimate claim filed by an inmate who had inmate assistance clogs the Court any more than a legitimate claim filed by an inmate who has a lawyer to help him or by an inmate acting pro se.

And, this rule prohibits all of them, the legitimate claims and the illegitimate claims.

Under the very narrow view, I think narrow, of the State of Tennessee and the State of California, the presumed state interest here in prohibiting the unauthorized practice of law seems to be served in whole part by allowing people to appear either pro se or with attorneys, and this ignores completely the indigent and illiterate incompetent who can neither act effectively nor can they afford an attorney.

The statistics that are provided by the State of Tennessee show that 44% of the people in the Tennessee State Penitentiary are of below average intelligence and 22% of the people in the Tennessee State Penitentiary are of defected mentalities.

Now, these people might be able to scratch our something on a piece of paper, a lot of them can’t even do that, but it just does not seem realistic to me to say that they can act effectively pro se, that they can call their claim to the attention of the Court or a lawyer in such a fashion that that claim would be understood.

And these people are the ones being discriminated against.

The State of Tennessee has provided no alternative means for these people.

The State of California has provided a series of forms that these people might use and fill out, but the central question on those forms that these people are to fill out for themselves is really the central question that must be answered in Tennessee, and that is that this inmate must be able to articulate why it was that he has been deprived of his constitutional right, just a simple statement of the deprivation of constitutional rights.

Well, I found it a bit difficult to pen a simple statement of a detriment of constitutional rights and I’ve had the benefit of a legal education, and these people matriculated in the streets and I don’t believe it’s taught there.

Mr. Chief Justice, I have asked to preserve a few moments of my time.

Earl Warren:

You may most certainly.

Mr. Fox.

Thomas E. Fox:

Mr. Chief Justice and may it please the Court.

On the question of federal statute, I have said in my supplemental brief that I really don’t think that that’s a serious question because, there, the statute says that application for writ of habeas corpus shall be in writing, signed and verified by the person for whose relief it is intended or for someone acting in his behalf.

I don’t think that goes any further than the ministerial act of signing or verifying a petition to be filed.

I don’t think that contemplated the preparation of petition.

So, I don’t believe that that statute can be relied upon as was done by the trial judge, the district judge.

The Court of Appeals thought to the contrary and I think, certainly, that that’s too broad an interpretation for that statute.

Now, on the question whether or not this is a practice of law, I don’t think that answers the question because, certainly, the State of Tennessee can’t regulate the practice of law in such a way as to deny prison inmates aaccess to the Court.

So, I think this is a different situation really from what it is on the outside.

I’ve tried to think, well, here are inarticulate people.

You have people who can’t write their names. You have the same type of people on the outside.

So, why wouldn’t the same rule apply?

Well, the only difference I could see, and I think this is favorable to the people inside the penitentiary.

They really have more calls, I think, the petition of course than the people do on the outside and I think that might — that’s justification for it.

So, I think, certainly, that any rule that the State of Tennessee has that would tend to deny these people access to the Court, we don’t contest that.

We know that that would be in violation of a constitutional right.

What would you do if the prisoner asked for a lawyer?

Thomas E. Fox:

If the Court please, under the present procedure, since the adoption of our Post Conviction Procedure Act which was adopted after this case was started but before it was decided by the US Circuit Court of Appeals in Cincinnati, we provide a form in the statute for the — making a petition.

Then, in one of those sections, we provide that no petition will be dismissed until an op — free opportunity has been given to freely amended with the assistance of counsel.

Thomas E. Fox:

So, I say, that any man that can say my rights have been — are being denied and signs his name to it and gets in Federal Court or in our State Courts is that broad.

Counsel will be appointed for him under the statute and that counsel will be given opportunity to amend it freely.

Then, if it can’t be amended so as to make out justification or allege a cause of action, then it can be dismissed.

What happened if the prisoner can’t say that?

Thomas E. Fox:

If the Court please, I —

This regulation will reach its existence if a fellow prisoner will help that man?

Thomas E. Fox:

If the Court please, the regulation may be a little broad and it may be susceptible to the construction that my worthy opponent has given it, that is to aid or assist, but I think those words used in context means to act in the capacity of giving legal advice not in helping a man to write out a small or a statement and makes — make his mark or sign his name to it.

I don’t think that it should be given that broad interpretation or construction.

I agree that it’s possible and I have learned that in a statute, in a regulation that I have ever experienced with, if the Court determined to give it a non-constitutional construction, it can be done.

I think that, I don’t believe there’s any question about that.

So, I — but, I don’t think a fair construction would go that far with this one.

Thurgood Marshall:

Mr. Fox, what is the interest of the State of Tennessee in keeping this man in solitary confinement for three years?

Thomas E. Fox:

If the Court please, this is talking about his punishment, but it’s also a preventive measure.

The man said and his counsel said —

Thurgood Marshall:

But what is so bad about what he’s doing?

Thomas E. Fox:

Well, every — I think, from the cases I’ve read, there’s not much evidence in the record on it but the f — the Director of Federal Bureau of Prisons instructed the wardens at the federal prisons to provide a writ writers’ room and allow people — and the purpose of it was to prevent the writ writers from having prisoners write petitions.

Now, I find, for meeting the cases that most of the Courts — most of the State Courts in the 50 jurisdictions have had similar rules.

Now, here’s what they say about it.

This is what was said about them in one Federal Court.

Most laymen like the ability and it would be hardly necessary to include a special provision of law to authorize the employment of trained legal assistance in preparing papers.

If the Court please, that’s not the — it just says that it permits the more aggressive type to take advantage of the other prisoners who are not quite so aggressive.

It says that in some of the cases, I believe that is Hatfield versus Bailleaux from the Ninth Circuit, it just says that even though it said that no co — that no charge is made, that it’s almost impossible to find a case where a charge is not made, that it might be required in candy, it might be required —

Thurgood Marshall:

Is there any evidence in this record?

Thomas E. Fox:

No, sir.

There’s no evide —

Thurgood Marshall:

Well, let’s stay with this record.

Thomas E. Fox:

No, sir.

No evidence in this record to that effect and, so, we insist if it gets back to that then the decree of the District Court is wrong because there’s no evidence either way on those questions, but —

Earl Warren:

Mr. Fox, let us take the case of a man who is indigent in your —

Thomas E. Fox:

Yes.

Earl Warren:

In your penitentiary at Tennessee.

Thomas E. Fox:

Yes, sir.

Earl Warren:

And, I suppose there are many of them.

Thomas E. Fox:

Yes, sir.

I’m sure that’s right.

Earl Warren:

Let us assume that he is also illiterate, and I’m sure they have many of those, have they not?

Thomas E. Fox:

Yes, sir.

Earl Warren:

And suppose he has a good cause for relief.

How, under your regulation and the practice in your state, can he get relief?

Thomas E. Fox:

If the Court please, I think this.

Now, the regulation provides aid or assist.

I don’t say that that goes to the ministerial functions.

I think that if I, in that position, had a cause of action, I don’t know why I couldn’t state somebody — asked somebody to write it for me and they’d perform nothing more than the ministerial act of writing what I say and then allow me to make my mark.

I don’t believe that that regulation ought to be construed broadly enough or inclusive enough to eliminate that type of situation.

Earl Warren:

But, it has been, hasn’t it?

Thomas E. Fox:

No, sir.

I don’t believe that it has today, as I don’t know it, unless Judge Miller, the district judge, put that count — construction on it, and I don’t think that — I think if he did that that it really wasn’t necessary because, as I said before, I think we’ll have to construe all regulations and statutes in accordance with its context or its environment and keep in mind the thing that was attempted to be permitted.

Here’s the problem.

Earl Warren:

But tell me how far you think that a man such as I suggested could go under your regulation.

Thomas E. Fox:

I think when it gets beyond a ministerial act, and I mean by ministerial —

Earl Warren:

Now, a ministerial act —

Thomas E. Fox:

Yes, sir.

Earl Warren:

Do you mean in — what can he do — actually do?

Thomas E. Fox:

Yes, sir.

Well, under the statute, certainly, another inmate could sign it for the prisoner and he could verify it.

Earl Warren:

But signed by —

Thomas E. Fox:

Under the federal statute, I’m speaking of.

Earl Warren:

Yes.

Thomas E. Fox:

And we don’t deny that that — that he has that right.

The federal statute gives him that right.

Earl Warren:

Yes.

Thomas E. Fox:

And we — that was in existence when our regulation was made and I know that nobody in my state would intend to contradict or ignore or be in conflict with federal law because we understand that.

Earl Warren:

Alright, he can sign it and verify it.

Thomas E. Fox:

Yes.

Earl Warren:

Now, what else could he do?

Thomas E. Fox:

Well, I would think that if he could — he might, even if the man told him what to write, he could write it.

Now —

Earl Warren:

He could what?

Thomas E. Fox:

If the prisoner told the other prisoner what he wanted written, I think he could do that.

I think the regulation is subject to that type of construction, but here is the problem and I’m not sure there’s enough evidence in this record to show what takes place, but it was observed in this Hatfield versus Bailleaux.

The Court said “we observe from the 2,255 cases that have been — come before this Court that the penalties of perjury do not deter the writ writer from writing whatever they want to,” and that’s the kind of thing that our regulation was designed to get rid of.

This is outside the record but the Court might know that, usually, those petitions are about that thick.

They cite — they’re not limited to what —

Byron R. White:

You don’t think we’re familiar with it?

Thomas E. Fox:

I don’t know whether it has been up here or not.

You have no report opinions on it, if the Court please.

That’s as much as I know.

At least I could find no report opinion dealing with those things so maybe the petitions haven’t gotten up to here.

Harry A. Blackmun:

Well, if you think that that’s a novel experience in this Court —

Thomas E. Fox:

Yes, sir.

Well, I —

Harry A. Blackmun:

Of course, take it.

Thomas E. Fox:

Fine, if the Court knows about those things then that’s what we’re trying to eliminate.Wouldn’t I assume that Judge Miller right there in Nashville gets quite a few of them

Yes, sir, he does.

Thurgood Marshall:

Yet, he said that the regulation was bad.

Thomas E. Fox:

Yes, sir, he did that.

Thurgood Marshall:

He’s the one who’s suffering the most, isn’t he?

Thomas E. Fox:

Yes, sir.

Thurgood Marshall:

Isn’t he the one who’s suffering the most?

Thomas E. Fox:

He suffers a lot, but — I don’t — I think though that judges suffer just as much.

Thurgood Marshall:

Didn’t he — didn’t his ruling say, in so much, that he didn’t need your help?

Thomas E. Fox:

Judge Miller?

Thurgood Marshall:

Yes.

Thomas E. Fox:

If the Court please, I don’t remember that in his decision.

Thurgood Marshall:

No, I mean he said he didn’t need that regulation.

Because he knows it was bad, didn’t he?

Thomas E. Fox:

Yes, sir, but we are here because we say Judge Miller was wrong in because the Court of Appeals in Cincinnati said he was wrong.

Now, Judge Miller might be right, but we’re here because we insist that he was wrong and the Court of Appeals in Cincinnati put it on the basis more so on the practice of law.

I don’t really accept that theory because the Court said it, but I don’t think that quite gets to it because, as I said earlier, it’s — it seems to me like there’s no question about what is practice of law but you can’t regulate — the state can’t regulate the practice of law in such a way as to prevent people to come to Court.

I understand that.

Abe Fortas:

Mr. Fox, I understand —

Earl Warren:

Well, from your answer to me, are we entitled to assume that because of these 2,200 cases that you get in your Courts that the main purpose of this regulation is to relieve the Courts of a difficult burden?

Thomas E. Fox:

One, that’s one reason.

The other is that all the prison officials, state and federal, that I’ve read about, and I think the cases that I’ve read are nearly enough to include all of them, they say it underlines prison discipline and morale that’s impossible to repatriate or rehabilitate prisoners after they come on the influence of an — of a writ writer who is unscrupulous, who is not deterred by the penalties of perjury, who uses the people for his own purposes rather than for the purposes that the penitentiary designed for, I take it, to reform people to themselves, and that rehabilitation is impossible once the writ writers get control of the members of the prison.

Here’s what I look for them to go and this is what one of the Courts had to say about Hatfield versus Bailleaux.

Prison officials testified that if permitted to engage in such practices, aggressive inmates of superior intelligence exploit and dominate weaker prisoners of inferior intelligence.

The practice also tends to develop a group of inmate leaders which is discourage in all institutions.

Earl Warren:

Where are you reading from?

Thomas E. Fox:

I’m — I’m reading from Hatfield versus Bailleaux.

That’s a Ninth Circuit case, if the Court please.

I also got that 2,255 cases from that same case, the Ninth Circuit case, but —

Abe Fortas:

Mr. Fox, do you still argue that there’s no standing here?

Thomas E. Fox:

No, sir.

If — insofar as the man’s right to petition to be released from solitary confinement.

I think it has standing, yes, sir.

I don’t — I have not —

Abe Fortas:

But if we — but, this case seems to me, at least arguably, to be in a rather peculiar posture because I — if we should vindicate the right of an inmate to consult with a fellow inmate for the first inmate’s benefit, that’s one thing but, here, what we’re asked to do really, as I understand it, is to hold that an inmate has the right as a matter of regular practice, isn’t that so, to help other inmates in preparing petitions for post conviction relief?

Thomas E. Fox:

Yes, sir, they —

Abe Fortas:

It’s a little puzzling as to whether it’s a question of standing or something else, but I was just wondering whether that really is indifferent from the kind of case — another case we have on petition for certiorari in this Court, I’ve forgotten the jurisdiction, in which an inmate himself applies for relief because prison authorities won’t let him consult with other inmates and provides no alternative.

Thomas E. Fox:

Yes, sir.

Abe Fortas:

Petitioner here is, if I correctly understand this, is asking us not only to release him from what, off-hand, seems to be a very onerous treatment by the Tennessee prison authorities, but he also asks us to establish his right to engage in the practice of furnishing this kind of advice and assistance to other inmates.

Do I correctly follow as this —

Thomas E. Fox:

Yes, sir.

It’s insisted upon by opposing counsel that he has — that the writ writer has that right because the inmate who has the cause has that right.

He cited authority for it.

I thought — I didn’t think that sounded too unreasonable, so I didn’t question that.

It provided, it’s found that it’s necessary — that this kind of help is necessary for prisoners.

Abe Fortas:

You didn’t think that “what is too unreasonable”?

Thomas E. Fox:

For it to say that, that one per — inmate had a right to assist another inmate who was absolutely without — who was in need of his help beyond question, no question about his need, it’d be unreasonable to assume that or to find that the other — the inmate who did know how to assert his right, that he could go to another person and have that person to assert it.

I think that, if I understand properly, they — because of free speech they insist they have a right to be at the place together and use it and to disseminate it.

I hear that argument in — about the right of the press in the Court to take pictures and things of that sort.

They say the public has the right to know and that because that we have a right to get that information and give it to the public.

I thought that was a similar sort of analogous thing and say the least of it, and I didn’t contest it, maybe I should have.

Potter Stewart:

That is the standing point.

Thomas E. Fox:

Yes, sir, the standing point.

Potter Stewart:

You’re addressing yourself to.

Byron R. White:

From the standing of the petitioner to assert somebody else to write this.

Thomas E. Fox:

Yes, sir.

I didn’t contest that.

I just —

Your adversary suggested that, at least in part and perhaps almost entirely, this petitioner’s rights are derivative of somebody else’s.

Thomas E. Fox:

Yes, sir.

I didn’t contest that, assuming that it was not objectionable on the grounds of prison discipline and order and rehabilitation of prisoners.

Byron R. White:

Well, actually, we held, I know it’s a little different, but in the Button case, didn’t we, that that organization, NAACP, could assert the rights of others who did not want themselves be litigants and —

Thomas E. Fox:

Yes, sir.

Byron R. White:

In Courts and we laid it on First Amendment grounds.

Of course, we didn’t say they could do the — assert those rights of others through non-lawyers in Court.

Thomas E. Fox:

No, sir.

Byron R. White:

Now, we did say that of course, there, we didn’t have any non-lawyer problem.

We had lawyers.

Thomas E. Fox:

I believe that that’s —

Byron R. White:

That sort of bears on this, doesn’t it?

Thomas E. Fox:

Yes, I think that’s a case that was cited in opposing counsel’s brief —

Byron R. White:

Yes.

Thomas E. Fox:

For that part, but —

Byron R. White:

But, part of the rationale of that case, as I understand, wasn’t the great unlikelihood that their rights would ever be asserted otherwise.

Thomas E. Fox:

Yes, sir.

Byron R. White:

Except through these —

Thomas E. Fox:

That’s right.

Well, we think now — I noticed in stating the questions, I’ve stated a little bit differently from Mr. Fortas’ question.

He says the right — he’s talking about the right of inmates to help others when there’s no other aid available.

I just stated it broadly on the question of one inmate having a right to aid another.

If he insist now that it is not necessary and he doesn’t have that right when there’s other aid available, our position is that our post conviction statute now makes it awfully easy for any person to get into Court, either Federal or State Court, with his petition because he gets his petition up there and it’s not to be dismissed until an opportunity is given to free the amended with the aid of counsel.

So then, he gets legal help.

One other question now about the type of punishment that was imposed upon the writ writer, I think that it seized to be punishment and it became a necessary measure for this — for prison discipline or for the security of the prison.

This man said, and his counsel said it at the hearing in the Federal District Court, that he expected to continue to write writs without regard to what the regulations were or without regard to anything else, except when another means was provided.

So, in order to stop him not as a matter of punishment, he’s got to be segregated or the prison officials have got to spend their time surveilling the other prisoners to see that they don’t get his help.

So, it seems to me, like it’s a lot easier and a lot more justifiable to put this man in prison and then spend the remainder of the ti — or then you — the officials have got more time to spend with the other prisoners, given them the help they need.

Abe Fortas:

Put him in solitary confinement?

Thomas E. Fox:

Segregate him from the other prisoners, if the Court please.

Abe Fortas:

Well, that means solitary confinement, doesn’t it?

Thomas E. Fox:

I think that means solitary confinement, yes, sir.

But, anytime he decided that he wouldn’t write anymore, he’d be released.

Abe Fortas:

Well, there are lots of penalties involved in the unauthorized practice of law, but that’s kind of a new one, isn’t it?

Thomas E. Fox:

Yes, sir, but this is a new situation in the prison.

This is different.

I think you have to consider the practice of law in this situation different from any other situation of any — I couldn’t find a case that dealt with and on these circumstances.

So, I think it’s a peculiar case and —

Thurgood Marshall:

Would this —

Thomas E. Fox:

Requires a peculiar remedy.

Thurgood Marshall:

Would this rule apply to a lawyer?

Thomas E. Fox:

I think so, yes, sir.

I don’t know that I fully understand the question, if there was a lawyer in prison —

Thurgood Marshall:

Well, just assuming against fact that there might be a lawyer in the penitentiary in Tennessee.

Thomas E. Fox:

Yes, sir.

Thurgood Marshall:

This rule would apply to him.

Thomas E. Fox:

Yes, sir, I think so.

I think it applies to everybody there.

Thurgood Marshall:

Wouldn’t that be “a little silly”?

Thomas E. Fox:

Well, if the Court please, I don’t know.

If a lawyer has committed a felony and his in the penitentiary, he has proven he’s untrustworthy, that he can’t be depended upon, I don’t — and he’s not a man of good character, so I don’t — that’s one of the requirements for practicing law.

Thurgood Marshall:

Well, then you’re actually protecting the inmates from him.

Thomas E. Fox:

Yes, sir.

Thurgood Marshall:

Even though the inmates want him?

Thomas E. Fox:

Yes, sir, but I think that man —

Do you have automatic disbarment in Tennessee for conviction of a Bar member?

Thomas E. Fox:

Yes, sir, I think so.

I think that’s generally the rule.

I’m not really familiar with it, but I do know that, to be admitted, you have to show evidence of good character and, it seems to me, once you’re put in the penitentiary you don’t — there’s no longer — the presumption has gone to say the least of it, that you — not a man of good character.

So —

William O. Douglas:

Do you have a public defendant?

Thomas E. Fox:

Sir?

William O. Douglas:

Do you have a public defendant?

Thomas E. Fox:

Yes, we do in Nashville, in Davidson County, we do —

William O. Douglas:

Where is this —

Thomas E. Fox:

In Memphis.

William O. Douglas:

Prison?

In Memphis?

Thomas E. Fox:

No, sir.

This — there are three prisons.

Thomas E. Fox:

One is in Nashville.

The other one is between Nashville and Memphis.

And then, one in East Tennessee.

William O. Douglas:

Defendant — public defendant in that county?

Thomas E. Fox:

No, sir.

I’ve heard this though, off the record, that —

William O. Douglas:

Why you couldn’t have the hours in that public defendant to see him, if you have one.

Thomas E. Fox:

Yes, sir.

I understand that some of Mr. Warden’s students, you can correct me on this, it was arranged for them to go in and hear the complaints and write the petitions for the people who were entitled to them, and they heard the complaints and they didn’t come up with any petitions.

So, the next time they went out there, nobody came to see them.

They didn’t have any qualms, and that’s the sort of thing that we’re trying to eliminate, are these petitions that one of the Courts, and I think it’s in my brief, said that the petitions were stereotype.

I take it they meant that each petition had the same thing as all the others in it, and I — it’s evident that that’s what happened.

These writ writers, everything that they know about the law they’d put it in the writ whether it’s applicable to this particular inmate or to s — or not.

Then, the Court had —

Abe Fortas:

Well, this petitioner wasn’t put in solitary confinement because he wasn’t practicing law well, was he?

Thomas E. Fox:

No, sir, I would say this though.

If he had limited his petitions to the cases that a lawyer would advice the petitioner conscientiously, that there’d never been this kind of rule, you never had any petition to have had because most of — most the petitions, as indicated by the Bailleaux case, Hatfield versus Bailleaux, are absolutely that many, 22 —

Does this gentleman have a monopoly business or are there other writ writers they could call?

Thomas E. Fox:

I understand there are others, if the Court please, but I don’t — I think this must be that maybe the others, when they started solitary confinement, agreed to stop and did stop their practices.

This is home on it.

Just as far as I know, it’s persistent.

The volume of writs this man —

Thomas E. Fox:

Sorry?

Does the record show the volume, the number of writs this man had there?

Thomas E. Fox:

No, sir.

It shows he’s filed several for himself and several for other people.

He filed one for himself with, I believe the record shows, with 45 pages in it.

He is free to do that.

William J. Brennan, Jr.:

I just — I’d be surprised if all 14 of them weren’t identical.

They usually are.

Thomas E. Fox:

Yes, sir.

They put on that — they put it all in.

There’s no question about it.

They were all that I know they ever made to get him —

William J. Brennan, Jr.:

I don’t think the ones we get here differ from those that know —

Thomas E. Fox:

I’m sure they’re the same thing, yes, sir.

I just didn’t know they’ve gotten up here.

William J. Brennan, Jr.:

Oh, they had it, by the thousands.

Thomas E. Fox:

Sorry.

William J. Brennan, Jr.:

Alright.

Thomas E. Fox:

Thank you.

Earl Warren:

Mr. Warden, you have a few moments.

Karl P. Warden:

Mr. Chief Justice, unless the Court has further questions for me, I have nothing further to add.

Earl Warren:

Thank you, Mr. Warden.