Jones v. North Carolina Prisoners’ Labor Union, Inc. – Oral Argument – April 19, 1977

Media for Jones v. North Carolina Prisoners’ Labor Union, Inc.

Audio Transcription for Opinion Announcement – June 23, 1977 in Jones v. North Carolina Prisoners’ Labor Union, Inc.

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Warren E. Burger:

We will hear arguments next in No. 1874, Jones v. North Carolina Prisoners’ Union.

Mr. Safron?

Jacob L. Safron:

Mr. Chief Justice, may it please the Court.

This case is before this Court upon direct appeal from a Three-Judge District Court sitting in the Eastern District of North Carolina, holding that the North Carolina Department of Correction, under its then announced policies could not prohibit the formation and operation of the North Carolina Prisoners’ Labor Union within the facilities of the North Carolina Department of Correction.

The Three-Judge Court, paying lip service to the opinion of this Court in Pell v. Procunier, cites Pell, and then immediately proceeds to emasculate the decision in Pell, subvert the holding of this Court in Pell, and require the North Carolina Department or Correction to provide resources to the North Carolina Prisoners’ Labor Union, and all other organizations equally and neutrally applied.

We sought a stay at that order.

The District Court denied a stay.

We sought a stay from this Court, and a stay was denied from this Court.

As a result of the denial of stays, it became necessary for the Department of Correction to issue regulations pursuant to the opinion of the Three-Judge Court.

Those regulations are printed in the respondent’s brief, I believe on Page 16.

However, the respondent in printing these regulations, has failed to provide one point.

The purpose of these rules is to regulate the activities of organized inmate groups not sponsored by Department of Correction in compliance with the…

Where are you reading this?

Jacob L. Safron:

Your Honor, I am reading right now from our regulations.

This is not indicated in the brief, and just one paragraph.

It is not reproduced in the brief?

Jacob L. Safron:

No, Your Honor, it is not.

The purpose of these rules is to regulate the activities of organized inmate groups not sponsored by Department of Correction in compliance with the order issued by the three-judge panel in North Carolina Prisoners’ Labor Union v. Jones, presently being reviewed by the United States Supreme Court.

The Department of Correction reserves the right to amend these rules, if that Court modifies the decision of the Lower Court.

In this case, the Department of Correction sought to take a moderate position.

The Three-Judge Court acknowledges the Department sought to take a moderate position.

The Three-Judge Court recognizes and admits that the correctional officials have real and sincere doubts about this organization and fears concerning the results that such an organization might bring.

Yet, the Three-Judge Court disregarded those fears.

Now, we have published regulations.

Other organizations have gone with those regulations and are functioning.

The Prisoners’ Labor Union refused to comply.

They filed their original self-serving declaration when they first formed themselves, which was insufficient.

When we said it was insufficient, they sought an order to hold the correctional officials in contempt.

There was as a result an extensive plenary hearing.

This is all post.

Jacob L. Safron:

This is post, and I point out.

Well, what does it bear on?

Jacob L. Safron:

Well, we have issued these regulations because we could not get a stay.

The Court at the contempt hearing found that the petition to hold the defendants in contempt was sought — would be so intend to harass the defendants, the correctional officials, and that we had done everything required of us.

The Prisoners’ Labor Union does not currently exist, although under the rules, if they would properly apply, they could exist.

Anything that they say concerning any benefits that the correctional system has derived is mere puffing on their part.

According to the Three-Judge Court, we opened the doors.

We sponsored and recognized the Jaycees.

It is an organization, of course, with national roots in outside society.

It has served, and has been determined to serve, worthwhile rehabilitative goals within the Department of Correction.

But we have opened the door and the Three-Judge Court says the Fourteenth Amendment now denies us the opportunity to pick and choose among those organizations that can come in.

We have sponsored and worked with the Alcoholics Anonymous, obviously an organization with outside organizations which serves valid rehabilitative purposes.

At our youth facility, we have the Boy Scouts, once again an organization that serves valid rehabilitative purposes and has good, solid roots in society.

But because we have brought in the AA, because we have brought in the Jaycees and the Boy Scouts, now the Three-Judge Court says we can no longer pick and choose among those organizations which utilize our resources, which utilize our time, and we must treat them all alike.

If we let someone come in from AA or the Boy Scouts from the outside, from free society, or the Jaycees, we must let someone come in from the Prisoners’ Labor Union.

If we permit the Jaycees to send in bundles of publications for distribution to their members, we must permit the Prisoners’ Labor Union to send in the bundles.

I would submit that the Three-Judge Court has not properly read the decision of this Court in Ross v. Moffitt.

There are obviously limits beyond which the Fourteenth Amendment cannot be stretched without breaking, and in this case I submit that the Fourteenth Amendment has been broken asunder.

Furthermore, this Court announced quite clearly in Pell v. Procunier, the basis under which correctional officials can pick and choose among various goals, and recognize the valid fears of correctional officials.

In this case, among those fears are concerted action, because even if the intent of this union is peaceable, I submit that common sense leads us to a conclusion that if their peaceable demands are not met, that inmates, prisoners who have already demonstrated an inability to live within the law, and quite often resort to violence as a means of determining their own ends, will of necessity resort to violence.

Well, the District Court said it would be time enough at that point to grant you relief and certainly indicated it would grant relief if that happened.

Jacob L. Safron:

You Honor, must the Department of Correction await a catastrophic incident?

That is what we are waiting to hear you argue.

Jacob L. Safron:

Must we await a catastrophic incident before there is a factual record which will support the fears and concerns of correctional officials?

Must men be killed and injured, must property be burned before our fears have any validity?

Must inmates be given the opportunity to use our facilities, our limited resources?

Must they be allowed to coalesce into formal organizations, which if they said, we are going to strike tomorrow and we have 77 units in North Carolina, there will be no way of the State to respond?

We saw a horrible riot occur in 1968, when the so-called bulls of the yard had a very profitable hobby shop business going, where some of them were making so much money that the Internal Revenue Service brought suit for failure to pay taxes.

And when our..

This was in your own institution?

Jacob L. Safron:

Yes, sir and when that occurred.

Could that have been done without the cooperation of officials within the institution?

Jacob L. Safron:

Sir, when a new administration came into being, and that administration sought to emasculate the power of some of these inmate bulls.

Well, could they have had it without the cooperation of the officials?

In the first instance.

Jacob L. Safron:

In the first instance?

Your Honor, please, I do not really believe cooperation is needed.

The inmate peer structure is such that cooperation of the officials is not required.

Well, how could a man build up that kind of an institution within a prison walls without the officials knowing about it?

Jacob L. Safron:

Your Honor, at some point officials do know about it, and in our situation.

They did know about it.

Jacob L. Safron:

When they finally, when the new administration came into being, an attempt was made to withdraw the power.

Riots occurred, now, we are quite familiar with the riots which occurred at Walpole as a result of the introduction there of the National Prisoners Reform Association.

There is a book which is part of the record in constant fear, in which an inmate tells how it was the introduction of the National Prisoners Reform Association which was the catalyst for the violence that occurred as the hardened, long-term inmates sought to take control of the institution.

The deposition of Warden Mullen of Rhode Island is part of the record in this case.

The deposition of Warden Mullen is a horror story of what can happen in an institution.

When he arrived there was not a window left in that entire institution.

The National Guard and the State Police were called out and for five to six months it was necessary for them to run that institution to restore law and order.

And as Warden Mullen tells, when you have various diverse groups within an institution, and in that case a Youth Commission trying to break away from the leadership of the reform association, the older hard-core mafia types.

All of a sudden the members of the Youth Commission, disbelieving how hard and violent the older inmates could be, in one instance were almost wiped out.

Mr. Attorney General, could I ask you two questions?

Is there anything in the District Court’s findings relating to the problem of the older inmates?

Jacob L. Safron:

No, Your Honor.

Is there anything in the record on that subject?

Jacob L. Safron:

The affidavits of the officials — I am just illustrating, Your Honor — the deposition of Warden Mullen is a part of this record.

And he describes that as a danger?

Jacob L. Safron:

He describes that as a danger.

Now, if Your Honor please, time is running quickly and…

Let me ask you a second question, because I have two questions.

Do you dispute the right of the prisoners to form a union?

Jacob L. Safron:

Your Honor.

You seem to in Point One of your brief, but the District Court said you did not.

Jacob L. Safron:

This is a very.

Did you change your position or is it the same?

Jacob L. Safron:

No, as I said in the beginning, we took a moderate position.

Now…

But did it include an objection to their forming a union?

Jacob L. Safron:

Yes, we have objected.

The reason we are before this Court, the reason we are in the District Court is because the regulations were promulgated, which prohibited the formation and operation of a Prisoners’ Labor Union within the walls of the North Carolina Department of Correction.

The one concession, which was a moderate point, because we were concerned about First Amendment rights, is that the North Carolina Prisoners’ Labor Union under the auspices of one Robby Perner, had an office in the city of Durham, and we did not say inmates could not join the Prisoners’ Labor Union, we have no regulation saying you cannot be a member of the Prisoners’ Labor Union, or you cannot be a member of the Ku Klux Klan, or you cannot be a member of the Black Panthers.

We had no objection to inmates on a one-to-one situation writing to Mr. Perner at his outside office, and being members of this outside organization, we objected to the formation, creation, and implementation of concerted action within the facilities of the Department of Correction, the utilization of State resources, and time and facilities and manpower.

Because we have not said that inmates could…

Didn’t the District Court agree with you on that?

It said that they have no right to form or belong to a labor union for the purpose of taking concerted action, to force their demands upon present administration.

I do not know what you are disagreeing with respect to what the District Court ruled against you on.

Jacob L. Safron:

The District Court’s ultimate conclusion is we must let them in or else stop all other organizations.

To control this group we would have to throw out Jaycees, AA, Boy Scouts, any other organization which the Department of Correction has determined serves a beneficial, rehabilitative, and penological need.

Now, we have not tried to interfere with the outside organization.

Our interference, Your Honor, is with a concerted organization within the Department of Correction.

If they want to join any outside organization, if they are to receive literature from that outside organization, we will not interfere.

But Attorney General, you won on that issue in the District Court, didn’t you?

Didn’t he rule for you on the concerted action issue?

Jacob L. Safron:

No, Your Honor.

Paragraph 1 on Page 30 of the jurisdictional statement.

I do not understand why you are — aren’t you satisfied with that ruling?

Jacob L. Safron:

No, Your Honor, it means we must leave a man, it means we have no decision.

The Court has emasculated the authority of the North Carolina Department of Correction to pick and choose among those organizations which will come in, those organizations which will utilize our resources.

You said that the District Court said in effect you had to treat this union the same way you treated the Jaycees?

Jacob L. Safron:

Yes, Your Honor, we have no power to choose.

Your Honor, please, it is Mr. Geller’s turn now for the —

Warren E. Burger:

Mr. Geller?

Kenneth Steven Geller:

Mr. Chief Justice, and may it please the Court.

As Mr. Safron has indicated, the District Court in this case has held that the State of North Carolina is required by the First Amendment to allow inmates in its penal institutions to solicit other inmates, orally or in writing, for the purpose of encouraging membership in the North Carolina Prisoners’ Labor Union.

It has also permitted to inmates to receive outside correspondence and publications advocating prison unionism.

In addition, the Court below has ruled that the Equal Protection Clause of the Fourteenth Amendment requires the State to accord the Prisoners’ Union mass mailing and meeting privileges within its correctional institutions to the same extent that any other inmate organization enjoys such operating privileges.

The United States believes that this decision is incorrect, and that the District Court has intruded itself into an area that should properly be left to the sound discretion of correctional officials.

We believe in addition that if the Lower Court’s decision is upheld, it may lead to serious breaches of prison security and may impair efforts of inmate rehabilitation as well.

Now, legal principles that govern this case are clear.

Without question, the anti-union regulations of the North Carolina Bureau of Corrections, like those of the Federal Bureau of Prisons, restrict to some extent the associational liberties of prison inmates.

But this Court has emphasized on a number of occasions that First Amendment rights are not absolute, and that such rights must be considered in light of the special characteristics of the environment in which they are asserted.

In a prison environment the controlling standard was articulated three years ago in Pell v. Procunier.

There and upholding State and Federal regulations that erected a blanket prohibition against face-to-face interviews of prison inmates by representatives of the news media.

The Court stated that a prison inmate only retains those First Amendment rights that are not inconsistent with his status as a prisoner, or with the legitimate penological considerations of the correction system.

Challenges the prison restrictions that are asserted to inhibit First Amendment rights, said the Court, must be analyzed in terms of the legitimate policies and goals of the correction system.

John Paul Stevens:

Mr. Geller, may I interrupt because I missed something, I know both you and the Attorney General have mentioned that there was a Fourteenth Amendment violation found by the District Court.

Kenneth Steven Geller:

That is correct.

John Paul Stevens:

Is that correct?

I did not find that in the opinion.

I thought the opinion was on the First Amendment.

Kenneth Steven Geller:

No, for the first part of the opinion, Mr. Justice Stevens, was the First Amendment considerations.

The second part of the opinion, the District Court found that the State must allow the North Carolina Prisoners’ Labor Union to engage in meetings within the prison, in mass mailings, and in allowing outsiders to come into the prison to the same extent that it allows any other inmate organization to enjoy those facilities.

John Paul Stevens:

As I read it, what it was saying was that they have a First Amendment right, and the measure of the right should be the same as is given to these other organizations.

I do not think it held, or did it, that the failure to treat them the same was a violation to the Equal Protection Clause?

Kenneth Steven Geller:

No, I believe that it did, Mr. Justice Stevens.

I think it.

Potter Stewart:

Look at Page 29 of the opinion to be found in the jurisdictional statement.

It makes it clear that it is decided by application of the Equal Protection Clause of the Fourteenth Amendment, the middle paragraph on Page 29.

Kenneth Steven Geller:

That is correct, Mr. Justice Stewart.

The District Court did not extend the First Amendment principles.

Potter Stewart:

First of all, our business is Fourteenth Amendment, the First Amendment is not applicable to the State of North Carolina, it is applicable only to…

Kenneth Steven Geller:

Fourteenth Amendment, that is correct, but I assume Mr. Justice Stevens was talking about the Equal Protection Clause of the Fourteenth Amendment.

John Paul Stevens:

Wouldn’t, you think that is critical of the District Court’s analysis, the Equal Protection argument?

Kenneth Steven Geller:

Yes, we do, certainly — but this Court, as we read the opinion, did not extend the First Amendment discussion or the Fourteenth Amendment as it incorporates the First, so far as to say that the prisoners have a First Amendment right to receive mass mailings or to allow outsiders to come in to talk to them.

But it held that they had that right under the Equal Protection Clause of the Fourteenth Amendment to the same extent as any other inmate organization within North Carolina’s prisons is allowed to enjoy those rights.

John Paul Stevens:

Thank you.

Kenneth Steven Geller:

Now, we have discussed in some length in our brief the serious problems that may reasonably be anticipated in the area of prisoner rehabilitation if inmate unions are allowed to function within the prison system.

We have pointed out, and I believe it is not disputed, that efforts to change the value system of individual prisoners or to achieve inroads in the prison social structure would be severely frustrated if correctional officials had to deal with, or at least answer to an inmate group with pervasive influence throughout the prison.

But I would like to limit my discussion here to the potential impact of such prisoner groups upon an even more important correctional goal; one that this Court in Pell termed central to all other institutional considerations.

That is the internal security of the prison facilities themselves.

It cannot be emphasized too strongly that this case involves a claim by prison inmates, that they have a constitutionally protected right to associate with other inmates, and to engage in concerted activity within the confines of the prison.

Prisons are unlike any other institution in our society.

They are closed communities of proven lawbreakers under the constant and close supervision of a limited staff.

For obvious reasons, related both to the type of people who constitute the inmate population, and the conditions under which they inevitably must live.

The atmosphere in prisons is frequently tense and volatile, having no counterpart in the outside world.

In these circumstances we believe, the presence of any concerted activity among inmates is a cause for concern.

William J. Brennan, Jr.:

Well, as Mr. Justice Stevens said, what is the significance of paragraph 1 in Page 32; whatever right of association of any prisoners derived from the First Amendment, they have no right to form or belong to a labor union for the purpose of taking concerted actions to force their demands upon prison administrators.

What does that mean?

Kenneth Steven Geller:

I think it means, Mr. Justice Brennan, that the District Court acknowledged that if at some future time.

William J. Brennan, Jr.:

If you have been saying the demand here is that they want in a concerted fashion to assert certain rights as a prison union.

Kenneth Steven Geller:

That is correct.

William J. Brennan, Jr.:

Well, doesn’t this say they do not have those rights?

Kenneth Steven Geller:

It states that if any time in the future they begin to act as a group for the purpose of engaging in acts that the State may legitimately prohibit, the State at that point may move in.

But we believe as does the State..

William J. Brennan, Jr.:

Is that what it says — I thought it said whatever right they may have, if any, they have no right to form or belong to a labor union for the purpose of taking concerted action.

Kenneth Steven Geller:

I understand that, Mr. Justice Brennan, but under the District Court’s opinion, these collection of inmates would be allowed to engage in the first steps that we believe would lead inevitably to concerted activity, there would be no…

Warren E. Burger:

Must that not be read with paragraph 2 and 3 on Page 32; paragraph 3 saying the Union and its inmate members shall be accorded the privilege of holding meetings generally under the same conditions as the Jaycees and the Boy Scouts and the Alcoholics Anonymous.

Kenneth Steven Geller:

Well, that of course Mr. Chief Justice relates to the equal protection analysis of the District Court.

Warren E. Burger:

I am talking about whether it was.

Kenneth Steven Geller:

I think the opinion.

Warren E. Burger:

From whatever source it derives, the impact on the prison is determined not by what is said in the opinion primarily but what is said on Page 32 under paragraphs 1, 2 and 3, that is the order of the Court.

Kenneth Steven Geller:

That is correct, and that is incorporated in the judgment which follows in Appendix B, that is correct.

I think under the District Court’s opinion, these inmates have to be allowed to solicit other inmates.

They have to be allowed to organize and coalesce into a group, and they have to be allowed to engage in such concerted activities as other inmate groups within the Union, no matter how beneficial the other inmate groups’ purposes are, are allowed to enjoy.

Warren E. Burger:

And all these derives from the holding of the Court that although there is no constitutional right to form a union, once they have been permitted to form a union and invite the AA and the Junior Chamber of Commerce and the Boys Scouts and others in, they must accord to this union precisely the same privileges as are accorded to these other organizations.

Kenneth Steven Geller:

That is the equal protection analysis.

Warren E. Burger:

Including meetings and concerted action within the prison.

Kenneth Steven Geller:

The District Court has held that under the Equal Protection Clause, Mr. Chief Justice, that is correct, and we disagree with that.

We think that there are obviously differences among inmate groups.

Some have obvious beneficial purposes.

Inmate leaders do not attempt to speak for other inmates in certain groups such as Alcoholics Anonymous.

In fact, the overwhelming weight of authority among correctional officials is that inmate groups should not be allowed to function, but that these other groups with obvious beneficial value should be allowed to function.

Now, there are a number of legitimate reasons we believe for this concern on the part of correctional officials.

One is that inmates, like people generally, tend to behave with greater emotion and fewer inhibitions when acting as part of a group.

Moreover, unlike the general population, prisoners have the shared characteristic, as Mr. Safron indicated, of having on one or more occasions resorted to seriously illegal means to achieve their goals.

A union with a formal leadership and organizational structure would always have the potential of engineering institution-wide or even system-wide outbreaks.

Thurgood Marshall:

Couldn’t these very same men set up an AA unit?

Kenneth Steven Geller:

Well, they could.

Thurgood Marshall:

Could they?

Kenneth Steven Geller:

We do not think it is important what they call their group.

Thurgood Marshall:

Could they set up an AA unit?

Kenneth Steven Geller:

If the warden would allow it, they would have to submit a charter to the warden explaining what the goals of the organization are, it does not really matter what they call themselves.

Thurgood Marshall:

And they set it up as an AA unit.

Kenneth Steven Geller:

That is correct, it would be monitored.

Thurgood Marshall:

And they have meetings at which meetings they decide to use concerted action to break down the rules in the yard.

What would happen then?

Kenneth Steven Geller:

Obviously, the prison authorities would move in at that point.

Thurgood Marshall:

But why would it not be just the same if it was called a union?

Kenneth Steven Geller:

Because if it is called Alcoholics Anonymous.

Thurgood Marshall:

It is the same people.

Kenneth Steven Geller:

I understand that, Mr. Justice Marshall, but if it is called Alcoholics.

Thurgood Marshall:

But then because it is a union, it cannot meet.

Kenneth Steven Geller:

If it calls itself a union.

Thurgood Marshall:

Well, suppose the Union meets on AA principles, that would not be any good, would it, because it is called a union.

Kenneth Steven Geller:

It does not matter, we believe, what it calls itself.

It depends what its announced goals are.

Thurgood Marshall:

Well, why is it banned?

Kenneth Steven Geller:

It is banned because it is an…

Thurgood Marshall:

Because it is an union.

Kenneth Steven Geller:

No, because its announced goals are inimical to the rehabilitation of inmates and to the valid correctional goals of institutional security.

Thurgood Marshall:

And why is that?

Kenneth Steven Geller:

As I have explained, we think that an organized group of inmates has the inherent potential.

Thurgood Marshall:

So the organizing is important?

Kenneth Steven Geller:

No, it is not the organizing, it is the fact that they have coalesced together for the purpose of presenting grievances.

Thurgood Marshall:

Is the coalescing together the point?

Kenneth Steven Geller:

No, it is what the impact is of what they plan to do.

Alcoholics Anonymous…

Thurgood Marshall:

What do they plan to do?

Kenneth Steven Geller:

They plan to present grievances, as we understand it, although there has been some fluctuation, they plan to present grievances to prison officials about conditions.

Thurgood Marshall:

What is wrong with that?

Kenneth Steven Geller:

I think on an individualized basis it is not wrong and it certainly has to be encouraged.

What the State legitimately fears is that when they band together for this purpose, they will always have the express or the implied power to use force if they do not gain what they believe is their right.

Thurgood Marshall:

Couldn’t they get together in the yard and have a meeting in the corner of the yard?

Kenneth Steven Geller:

Obviously, there is a limit to the pervasive.

Thurgood Marshall:

Couldn’t they do it?

Kenneth Steven Geller:

The question is we believe what legitimate steps the prison officials are allowed to take at the outset, when the organization has announced what its goals are, must it wait, as Mr. Safron has said, until these evils actually come to pass before it may take the first steps?

John Paul Stevens:

It seems to me if you rest your response to Justice Marshall on the goals of the Union as being improper, but the District Court found that there was no evidence tending to show that the inmates intend to operate the Union to hamper and interfere with the proper interest of government.

So if you are basing it on goals, it seems to me the finding forecloses your argument.

Kenneth Steven Geller:

I do not think I can agree, Mr. Justice Stevens.

First of all, this union has never operated within the prison system in North Carolina.

So although their announced goals seem laudable, I think that as this Court acknowledged in Procunier v. Martinez, the Courts must defer to the reasonably anticipated goals of the correctional officials as they perceive the inmate organization to operate in the future.

Kenneth Steven Geller:

But secondly, I think we also have to take into account that once this union becomes a fixture in the prison system, it will not be operated by these responsible outside advocates of prison reform, it will be operated by the prisoners themselves.

Now, all these goals..

John Paul Stevens:

Are the findings to that effect?

Kenneth Steven Geller:

I think that the appellees do not deny that these unions will be operated from within the prison.

John Paul Stevens:

Are the findings to that effect?

I do not think they are.

Kenneth Steven Geller:

I am not certain that the District Court..

John Paul Stevens:

Should we decide the case on the basis of the findings, or should we do it de novo?

Kenneth Steven Geller:

No, I think that the findings do indicate the fact that this union is made up primarily of prison inmates, and that it is governed by democratic principles, and therefore, I would assume that the majority vote would be made up of prisoners rather than outsiders.

John Paul Stevens:

In that respect is it not just like Mr. Justice Marshall, said hey, your difference as I understand is in their announced goals.

Kenneth Steven Geller:

Absolutely.

John Paul Stevens:

And the District Court found the announced goals were harmless.

Kenneth Steven Geller:

The District Court did, but we think that the District Court did not defer substantially to the expert judgment of correctional officials who should be able to look at these goals.

John Paul Stevens:

So you are asking us to set aside the District Court’s findings?

Kenneth Steven Geller:

No, we think that the District Court’s findings are in clear violation of what this Court said in Pell v. Procunier.

Pell v. Procunier and in Procunier v. Martinez, the Court said that unless the fears of correctional officials are grossly exaggerated on the record, the Court must defer to them.

Now, we do not think that the Court did that here, we think that the Court substituted its judgment in this case.

John Paul Stevens:

You maybe entirely right but that is an argument for the proposition that the findings are erroneous, that is what you are arguing, I think.

Kenneth Steven Geller:

We do not think it is a question of findings and fact, we think it is a question of what legal standard the District Court should bring to bear on the facts in the particular case, and we think that in this case it gave absolutely no deference to the legitimate findings and anticipated fears of the correctional officials.

And after all it is the correctional officials who have to deal with any outbreaks if they should occur.

Now, Mr. Geller, under the judgment, not the opinion as a whole, but under the judgment, if the State excluded all of these organizations, they would be in compliance — they would not be in violation of the Court’s mandate, I take it.

Kenneth Steven Geller:

They would not be in violation of the Equal Protection aspects of the Court’s mandate, but the Court also said, and it is the first paragraph on Page 32, that all inmates in the North Carolina prison system have a First Amendment right to solicit and invite other inmates to join the Union.

That is not dependent upon what other outside organizations are allowed to do.

It is somewhat in conflict with their finding that there was no right to join a union, is it not?

Kenneth Steven Geller:

Well, I am not…

Three or four pages earlier.

Kenneth Steven Geller:

The District Court explicitly stated that it did not have to reach that question because of what it perceived to be certain concessions by the State, but the State today, and we believe they are correct, disagrees with those findings of the District Court.

Was it not correct that in the District Court the State acknowledged that there was a right to join a union?

Kenneth Steven Geller:

That is not correct, as we understand it.

That is what the District Court said, the State acknowledged in this regard is wrong there, too, then?

Kenneth Steven Geller:

We believe it is wrong.

I thought that the District Court had said that North Carolina allowed them to join the Union, not that North Carolina acknowledged the constitutional right to join a union.

Kenneth Steven Geller:

That is correct.

North Carolina, we think, is taking a very sensible position.

It realizes there are some First Amendment interests on the part of prison inmates, so what it allows them to do is to do engage in outside correspondence with union members, to receive correspondence from the union, and consider themselves union members, because that does not raise any problems within the union.

It is only when they start to operate within the prison by talking to other inmates, attempting to organize other inmates, that the State wants to step in, it has no desire to limit discussions it has with outsiders about union activity.

Warren E. Burger:

Mr. Smith?

Norman B. Smith:

Mr. Chief Justice, and may it please the Court.

I am represent the appellee Prisoners’ Union here.

The Union is a prison reform and mutual self-help organization, it is not a labor union in the ordinary sense.

The Union does not claim and has not claimed any right to bargain, strike, or take any concerted, disruptive action.

The Union’s objectives are to improve prison rehabilitation programs, to establish community-based facilities, such as halfway houses, to secure public support for reform legislation and administrative measures, to litigate prison rights issues, to act by democratic processes in a multiracial organization.

The Union, contrary to the Solicitor General’s statements, has existed and has had activities.

There is a period of six months in existence prior to the adoption of the regulation in question, and another 12 months of existence subsequent to the District Court’s decision.

In contrary to what Mr. Safron says, the Union still exists, indeed, these letters were published within the last couple of months.

Mr. Smith, is this Certificate of Incorporation of the Union in the papers before us?

Norman B. Smith:

It is part of the record, Your Honor, please.

Does it authorize collective bargaining?

Norman B. Smith:

Well, the North Carolina incorporation laws allow incorporators to say essentially anything they want to in their papers, and there is no effort to review them and pass upon their adequacy.

But to respond directly to Your Honor’s question in Article Pre of the charter, the Union does purport to say.

Where is that in the record?

Norman B. Smith:

It is not in the printed Appendix, if Your Honor please, it is simply a part of the record that came up from the District Court.

I have an extra copy and I would be happy to leave it with the Court, but to respond to the question, it does purport to claim a desire to act as a collective bargaining agent.

That is certainly is a declaration of intent, is it not on the part of the…?

Norman B. Smith:

Yes sir, but on the other hand, it does not claim any right to take concerted action that would be disruptive of the prisons, such as…

But you can hardly state that, if you had that in mind, in your Articles of Incorporation, would you?

Norman B. Smith:

Well, if Your Honor please, look at the unionized employees of the federal government, they have no right to strike or take illegal concerted action yet virtually every agency is unionized.

I think you can have all different varieties of unions.

Did you hear about the strikes in New York, in San Francisco?

Norman B. Smith:

Yes, sir.

May I ask you also about the deposition of the Union.

Is it a fact as stated in your opponent’s brief that after this suit was filed the Union newspaper stated that the prisoners should be encouraged to organize with the right to collectively bargain for better conditions?

Norman B. Smith:

Yes, sir.

Now, Did I understand you at the beginning of your argument to say that there was no purpose for the Union to bargain collectively?

Norman B. Smith:

The Union realizes that, that purpose is illegal under North Carolina law, and…

As a result of this suit you have changed the basic objectives?

Norman B. Smith:

No, Your Honor.

One of the announced purposes of the Union is to secure favorable legislation.

In one reform, one legislative reform the Union would desire, would be to allow prisoners to collectively bargain in North Carolina.

I must say not a very hopeful and not a very probable purpose, but nonetheless, that would be the way they would go about it.

They realize currently that even State employees are precluded from collective bargaining in North Carolina.

So the purpose would await legislative reform, if ever.

But there is no intent to proceed unlawfully and to violate the State’s laws in that regard, nor can it be gleaned from any of the papers in the records, or from any of the evidence offered in Court.

The Union’s activities in the first six months before the ban came into effect included the publication of newsletters, the recruitment of 2,200 members; roughly one out of every six or seven inmates in the North Carolina Department of Correction became a member.

Some modest alterations of correctional procedure were claimed by the Union; getting hot showers at one unit, additional clothing and new linen in another.

The record indicates, without any rebutting evidence, that the Union defused certain racial incidents at central prison and brought about a degree of racial harmony there.

That the personal responsibility of the members was enhanced through the democratic processes of the Union, and that the Union helped to build self-reliance among its members.

Now, since the District Court judgment on May 12th, 1976, another 12 months of existence, I do not feel at liberty to depart from the record and discuss what has happened, except to say that the Union does exist, and it does publish newsletters, contrary to Mr. Safron’s assertions.

There is in the record the regulation that the Department of Correction adopted, pursuant to the District Court’s opinion.

The regulation applies neutrally to all organizations of inmates within the prisons.

It imposes what we concede are legitimate and constitutional time, place, and manner of restrictions, such as a maximum of 25 people attending meetings and holding meetings only if adequate supervision is available.

The regulation of March 26th, 1975, at issue here, on its face prohibits solicitation of membership, denies the use of departmental property to the Union, and excludes outside organizers.

In addition, as applied from the record we learned that the regulation banned the bulk mailing of newsletters by the Union.

Also, the regulation banned the circulation of any written material that could be deemed a channel for solicitation, so that we must regard any discussion of benefits, purposes, or even existence of the Union as being subject to that ban.

These regulations you were just referring to, Mr. Smith, were the ones that were challenged in the District Court, not the ones that were issued after the District Court judgment?

Norman B. Smith:

That is correct, I am referring to the March 26th, 1975 regulations which are in issue.

Many individual newsletters and items of correspondence were interdicted and sent back to their senders or destroyed, including correspondence from persons outside the Correction Department, in direct defiance with the standards in…

Do you think the Union should be able to solicit authorizations from prisoners for the Union to act as collective bargaining representative?

Norman B. Smith:

If Your Honor please, I feel that, that has an element of misrepresentation to it, because they are not capable under our laws, of acting.

So if they are not, so how about my question?

Norman B. Smith:

I should think it would be permissible for the Department of Correction to say no, you may solicit memberships, but please do not represent that you are a collective bargaining agent, because you are not.

Well, the Union did that, didn’t it?

Norman B. Smith:

The union did that and they…

In its newspaper, and all of that, didn’t it?

Norman B. Smith:

Well, it did that in its newspaper once or twice.

But in any event the State’s response to that was too broad.

The State went too far.

The State did not say do not misrepresent, the State said do not solicit in any form or manner and we submit, as the District Court properly decided, that this was an overbroad stifling of the First Amendment rights.

Well, would you say that you have the same reaction to forbidding solicitation by prisoners themselves?

Norman B. Smith:

I think it would be in defiance of the First Amendment to prohibit solicitation by the prisoners to join the Union.

Just as well, just like it would be, you assert for outsiders to solicit either by mail or by visitation.

Norman B. Smith:

The regulations, if Your Honor please, did not say that outsiders could not solicit.

Exactly, and it does not forbid them from soliciting for membership by visitation, does it?

Norman B. Smith:

Yes, that was done because…

By outsiders?

Norman B. Smith:

Yes, it said that outside organizers.

So none of the facilities maybe used by anybody for solicitation purposes?

Norman B. Smith:

That is true.

Theoretically, outside organizers can solicit by mail, but in practice, and as the record shows, many, many pieces of mail coming from outside organizers were interdicted and sent back.

Well, some of them, you would seem to agree, could not probably be interdicted, such as seeking an authorization to act as a collective bargaining agent.

Norman B. Smith:

I do not think the response is interdiction, Your Honor, I think the response is a statement to the Union saying…

What do you do with the piece of mail that you get, do you send it on to the prisoner?

Norman B. Smith:

Well, I think this Court did the right thing in Procunier v. Martinez, it says you give notice and you give an opportunity to object and you have a neutral decision maker and hopefully some reasons…

Well, I know that, but do you not send it on to the prisoner, in response to Mr. Justice White’s question.

Norman B. Smith:

You withhold it and give notice to the prisoner.

Alright, you give notice and then you have whatever kind of procedure you want, and you are the neutral observer and you are going to decide it.

You look at it and you see it is a solicitation for collective bargaining representation, now would you send it on to him or not?

Norman B. Smith:

No, I am going to write to the free world correspondent and say the basis…

But you are going to withhold an interdict delivery of that piece of mail.

Norman B. Smith:

Yes, and I am going to do it pursuant to proper procedures.

But you would interdict it, nevertheless.

Norman B. Smith:

I would, and I would know that…

How do you know then that every piece of mail you are talking about was not validly interdicted?

Norman B. Smith:

Well, the record says it was not, the record says it just either disappeared or was sent back, returned to sender, addressee, and all sorts of illogical.

You mean it was never opened?

Norman B. Smith:

Yes.

How do you know what was in it?

Norman B. Smith:

The record shows that it was opened.

Well, do you know what was in it?

Norman B. Smith:

Well, the people who wrote the letters filed affidavits with the District Court, attaching copies of the letters, saying what was in it and what happened to the letters.

There was no effort by the Department of Correction to follow the Martinez procedural requirements and as I say, the response of the Department of Correction was excessive.

They outlawed all solicitation instead of solicitation that might have been…

Yes, but you want more than permission to solicit from outside, you would not be satisfied with the decision here that said, well, the Court of Appeals was right insofar as it forbade solicitation on the premises.

Norman B. Smith:

Oh no, I think we would insist or would wish to insist upon prisoners having the right to solicit other prisoners to join the organization.

So you say that you would not be satisfied with just permission for outside solicitation?

Norman B. Smith:

No, Your Honor, no, we think that the First Amendment, the right of association goes broader than that.

But you do not include, do I understand, having outside organizers come in to solicit.

Norman B. Smith:

Well, this gets into the Equal Protection analysis, and we feel that we should be permitted to have outside organizers, only to the same extent that other organizations similarly situated, with similar goals and similar characteristics, are permitted to do.

With regard to…

Do you think the prison administrators should make their own value judgments on the purposes and the qualifications of these outside groups coming in to carry on activity?

Norman B. Smith:

Yes, sir, and when challenged under the Constitution, we think they have to support them with valid reasons and some evidence.

But do you agree with, I think Mr. Geller suggested in response to a question that I put that if they just excluded everybody, then that would be a compliance with, it would not be a violation of this judgment.

Norman B. Smith:

Well, I think there are some freedom of association principles involved here that could not be easily resolved by simply excluding everybody.

Well, didn’t the District Court cast it precisely on terms that the so-called union must have the same rights measured by the same dimensions and boundaries as these other public organizations?

Norman B. Smith:

If Your Honor please, as I understand the District Court’s opinion, the solicitation of members was grounded upon right of association principles, drafted…

Solicitation by whom?

Norman B. Smith:

By prisoners, to prisoners.

By outsiders?

Norman B. Smith:

No, by prisoners to prisoners.

To prisoners, and I am speaking now of the outsiders.

Suppose they exclude everybody, suppose the State simply says this is too much of a problem, we are going to stop picking and choosing. No Junior Chamber of Commerce, no Boy Scouts, no Alcoholics Anonymous, no organization.

Norman B. Smith:

Under the District Court’s opinion the things which were grounded on the Equal Protection Clause were meetings, mass mailing of literature and having outside people come in.

You are referring to paragraphs 1, 2 and 3 of 32 of the jurisdictional statement I take it, which is that last part of the judgment.

Norman B. Smith:

I think paragraph 1, if Your Honor please, the first clause of that at any rate is a First Amendment right of association of judgment.

I think the second clause of paragraph 1 and paragraphs 2 and 3 are grounded upon the Equal Protection Clause.

But the second clause of paragraph 1 of the opinion is hardly compatible with the first clause, is it?

The first clause says inmates and all other persons, and then after the semicolon, provided however that access to inmates by outsiders.

So the purpose of furthering the interest of the Union may be denied.

Norman B. Smith:

It is not very well written and I think if I may amend.

That is putting it mildly, isn’t it?

Norman B. Smith:

I think if I could amend my response to Mr. Justice Rehnquist’s question, I think I would say, I would excise the words, “and all other persons”, and would simply use the words “inmates shall be permitted to solicit and invite”.

You mean if you had been writing this opinion instead of the judges.

Norman B. Smith:

Then I would add a footnote in saying other persons could do so only by correspondence.

In other words, I do not think that we can compel correctional departments to allow outsiders in unless there is some equal protection leverage present.

Now, in number 2, this is the one I was referring to specifically, paragraph 2, Page 32, from the opinion, if they stop all mailing, bulk mailing from all sources, then they would not be violating the judgment.

Norman B. Smith:

I think I would be in trouble.

I do not think I could say that the First Amendment encompasses a bulk mailing privilege.

And if they do not allow the Junior Chamber and the others to hold any meetings, then they can stop Union from holding meetings.

Norman B. Smith:

I think I would be in a lot of trouble there too, Your Honor, yes sir, because I do not think…

Maybe that is what you are inviting the State prison authorities to do.

Norman B. Smith:

No, I think the State has found…

I should say not you, I should say the Court of Appeals in the Fourth Circuit.

Norman B. Smith:

The District Court.

The District Court, I am sorry.

Norman B. Smith:

We feel that the experience has been so good from the Jaycees and the Alcoholics Anonymous, and other groups, that the State is learning to handle associational interest in the correctional setting.

We feel that it will suffer no more from what our union proposes to do than it has from what these other organizations have done.

How about the Ku Klux Klan?

Norman B. Smith:

Well, it would depend on what kind of aims and purposes and what kind of proposed activities.

Well, I have not read its constitution, but I am sure it reads very prettily.

Norman B. Smith:

I have, Your Honor, and it certainly does not.

Norman B. Smith:

Many of the things it includes would be incompatible I think with…

Well, would a prison administration be entitled to determine that in advance of say racial difficulties or racial violence in the prison, or would it have to await disorder and violence before it moved in?

Norman B. Smith:

I think the State has already answered that question by saying that in these new regulations, these provisional regulations, assuming that the Lower Court…

Which as I understand is promulgated under the coercion of this Court decree that was left on stay.

Norman B. Smith:

Right, I think the State has already dealt with it.

They have said submit us your constitution and bylaws, a detailed statement of your proposed operations and how your finances are going to be handled.

We are not going to let you come in unless you do certain things.

Well, right now the Union is in the process of trying to satisfy the department under these regulations.

But these regulations were under the compulsion of this Court decree?

Norman B. Smith:

Sure, but I am saying that is a rational way to go about deciding what organization do you like to come in.

How, can you tell necessarily from the constitution and bylaws of an organization what it — can you not rely on your actual knowledge?

A lot of nations in the world have very fine constitutions but they are also dictatorships.

Norman B. Smith:

Surely, I think that is where proposed operations come in.

I think we have a duty even in prison to give free association and free speech.

To the Ku Klux Klan?

Norman B. Smith:

Right.

Well, Your Honor, that is a hypothetical that — I am not prepared…

No, that is a real question, it is not out of the air.

Norman B. Smith:

I would be inclined to think that they could…

The Ku Klux Klan is an organization which has members in various places in the United States, including I would assume the State of North Carolina, some of whom maybe in prison.

Norman B. Smith:

I would be inclined to think that the Ku Klux Klan could be kept out unless it did an awfully good job of cleaning up its aims and purposes, because its purposes are to foment racial hatred and perpetuate racial hatred.

I am sure that is not contained in its constitution, that without really knowing, but I would be morally certain that it does not say in its constitution: our purpose is to foment racial hatred.

Norman B. Smith:

Well, I think it can be fairly readily perceived from reading the constitution, as I recall.

These things do stand out, but moreover, the Klan has had years of operating history in which — no one needs to recount that, everyone knows it, but the North Carolina Prisoners’ Labor Union is a new organization.

Is it part of a national organization?

Norman B. Smith:

No, Your Honor, it is not.

Because there is something in the record about a similar union out in California.

Norman B. Smith:

There is a National Prisoners Reform Association which is active in some States.

Under this decree, under this mandate, suppose the PLO, the Palestine Liberation Organization, which has some sort of de facto recognition in the United Nations, applied to come in on the same basis as these others.

They could not be excluded any more than the Klan could be excluded, could they?

Norman B. Smith:

Well, it would depend on an examination of their bylaws and constitution and the statement of their purposes.

Well, I am sure the PLO has its bylaws, they do not openly advocate terrorism, but if you take judicial notice that they practice it.

Norman B. Smith:

Then of course you have an operating history of violence, and you do not have as far as the Union is concerned here.

The only history you have is a good one; it shows the Union is doing a lot of good things and the State is trying to suppress it.

All these hypothetical questions which are obviously quite far from the present situation, suggests that the District Court maybe did not give the deference it should have given to the judgment ordinarily accorded to prison administrators as required by Pell v. Procunier.

Norman B. Smith:

I feel the State had a burden to come in with some facts to show that this union had the probability of doing some harm.

Well, how do you show that the Union will engage in violence anymore than you could show that the PLO or the Klan would engage in violence?

How do you show that as to the future, just on the basis of their past performance?

Norman B. Smith:

Unless you have a past operating history or a statement of proposals, which in itself indicates improper conduct, you have to assume that the people will not improperly conduct themselves and of course the District Court made this point and it is a very important one.

The District Court said the minute things seemed to be going awry, the correctional authorities can come in and stop it, and litigate later.

Then you would have another law suit in the District Court to determine whether they had acted properly then.

Norman B. Smith:

Maybe so, as long as there are people who…

Let us forget the violence for a moment.

Would you not say the same thing had happened if namely the authorities could close down a union if it made some demands for collective bargaining?

Norman B. Smith:

If they demanded collective bargaining?

You agree that is illegal and that is not proper Union conduct.

Now, if the Union is going around indicating to its members or potential members that that is its purpose and its function, and then it demands collective bargaining to improve conditions in the prison, could the State at that point say, you have just demonstrated that you are engaging in illegal conduct and we want you out of here now.

Could it do that?

Norman B. Smith:

I think because collective bargaining would be unlawful under the State law that would be a permissible response.

Well, now the officials at this stage see that they are soliciting authorizations to be a collective bargaining representative, and that is what they are representing they are.

Now, why must the prison officials say oh, this is a big joke, they know it is illegal, they do not really mean it.

Norman B. Smith:

Well, the prison officials did say that, if Your Honor please, whether they must or not, they conceded that in their brief in District Court.

That was the opening paragraph in their brief in District Court.

They said, we agree that this is not a labor organization, it is a prison reform association.

So they agree and we agree.

Yes, but that is not what I hear from the State.

Norman B. Smith:

Well, if Your Honor please.

Whatever they said then, that is not what they say now, and it also is not what the Union’s papers say.

Norman B. Smith:

If Your Honor please, that was all worked out in District Court by agreement.

The District Court understood it, the parties understood it, I do not think they can be permitted to shift their positions here.

When you say worked out in the District Court, I am not sure I follow you.

Norman B. Smith:

Well, the plaintiffs made a representation that they were not engaged in collective bargaining or classical.

You do not mean that the opinion was worked out jointly by.

Norman B. Smith:

No, no, I mean that those facts were agreed upon by the Court and the defendant’s brief starts out with those paragraphs.

It is in the record and I have cited it in my brief.

So that is a red herring, I think.

Could you talk about the people protection aspect of your case a little further?

Norman B. Smith:

Yes, sir.

Which one of these organizations that are permitted to exercise certain activities within the prison would you consider most closely analogous to the Union?

Norman B. Smith:

I think that the Alcoholics Anonymous and the Jaycees both are quite analogous to the Union.

Does the record show how many Jaycees there are?

How many members in the prisons?

Norman B. Smith:

I do not think so, Your Honor, there are a number, but I do not believe it says how many.

The same is true of the AA.

The other organizations are much less in scope.

Would there be as many as 2,000 of each?

Norman B. Smith:

I would suspect so.

I think there is a Jaycee unit in every prison unit, and there are 77 of those.

Do the Jaycee chapters or organizations in North Carolina support the four legislative bodies or otherwise their own economic interest?

Norman B. Smith:

The Jaycees, I am not sure Your Honor, I am inclined to think that they do get involved in lobbying, but I am not sure.

What kind of legislation would a Jaycee organization support for the economic interest of its own members, as diverse as membership in the Jaycees?

Norman B. Smith:

I guess various things which they deem to be in the interest of their members, much the same as the Chamber of Commerce would or the NAM.

Can you give an example?

Norman B. Smith:

But I cannot, Your Honor, I am sorry, I am not that closely acquainted with what they do.

What about the Alcoholics Anonymous?

Norman B. Smith:

I am sure they have taken positions on alcoholic rehabilitation and treatment programs and questions of whether the alcoholics or drunk should be punished and that sort of thing.

In other words, things that are of interest to their association.

If I read your brief correctly, on Page 7, you list among the goals of the Union the furtherance of economic and political rights of prisoners.

Norman B. Smith:

Yes.

You really think that, that sort of goal is analogous to the goals of Jaycees, which ordinarily stage get out the vote movements and the like, really analogous to what the Union has in mind?

Norman B. Smith:

I think it is sufficiently analogous to invoke Equal Protection principles.

Have any legislative bodies in the United States ever thought the Jaycees were sufficiently analogous to a union to enact Jaycee labor legislation?

Norman B. Smith:

No, Your Honor, I do no think that the Jaycees…

Why did the national government think it necessary to enact the NLRA?

Norman B. Smith:

I presume there was a lot of interest by the working people of this country.

And there all sorts of things called unfair labor practices on both sides, weren’t they?

Norman B. Smith:

Yes, sir.

And unions are in the business to promote the political and economic activities, interests of their members perfectly properly, I am not critical of that.

Norman B. Smith:

Yes, sir.

And you think the Boy Scouts are analogous?

Norman B. Smith:

Well, I do think the Boy Scouts have become interested in a lot of legislation that is of importance to them, just like the CR Club does or like any other interest group.

I think Your Honor is correct in saying that the Jaycees are perhaps broader than some interest groups, but the relative breadth or narrowness of the interest group I do not think should be constitutionally determinative of whether they are accorded equal protection of the laws.

Does the record show what the activities of the Jaycees are with respect to the North Carolina prisons?

Norman B. Smith:

Yes sir, there is quite a bit in the record about that.

They operate canteens, they have barbeques and they wash cars and so forth and so on.

Outsiders do or prison inmates do?

Norman B. Smith:

Prison inmates.

Who are members?

They operate canteens and..

Norman B. Smith:

They have barbeques and chicken fries, and they wash and wax cars and they have..

Social and occupational activities?

Norman B. Smith:

Yeah, that kind of thing.

In the prison?

Norman B. Smith:

Yes, sir?

Are these activities aimed at rehabilitating the prisoners?

These barbeques that they run, do people come in to them?

Norman B. Smith:

Yes sir, they invite guests and family members in, yes sir, and sometimes they…

Is it a large group?

Norman B. Smith:

Yes sir, and sometimes if they are honor grade, they are permitted to hold them out in shopping centers and things like that.

And they make money out of it?

Norman B. Smith:

Yes sir, and the money is in turn used for worthwhile programs, including the health and comfort and certain welfare of the inmates, if I am correctly informed.

Mr. Smith, does the record tell us how the Union activities are financed?

Norman B. Smith:

Yes, Your Honor.

There was some seed money, and there was a grant I think of $1,000 from the AFL-CIO, and then something like $14,000 from a national prison reform association, not the National Prison Reform Association, but a charitable organization that gives such grants, I forgot the precise name.

The (Inaudible) Association?

Norman B. Smith:

The Southern Coalition for Jails & Prisoners?

Then there is a provision for dues in the bylaws, although dues thus far have not been collected, so I suppose…

Now, how long ago has the organization been in existence?

Norman B. Smith:

Well, it was organized in the fall of 1974, and it existed six months before the regulations in question were adopted.

And it is a State wide organization only?

Norman B. Smith:

That is correct, does not go beyond the State.

Was it organized in the prison or outside?

Norman B. Smith:

It was organized within the prison, working with the outside interested people.

So it has no real track record?

Norman B. Smith:

Well, the District Court looked at what it had done and determined no indication of any wrongdoing or any illegal conduct was there, and of course we rely on…

There was not much evidence of any activity, was there?

Norman B. Smith:

Well, quite a bit.

As of the time of the District Court’s.

Norman B. Smith:

Well, roughly one prisoner in seven had joined the Union, they published a number of newsletters, and they had quite a few activities.

So I would say there had been a good deal of…

But there seems to be a good deal of a difference in opinions to what their activities or even their purpose is.

Norman B. Smith:

We think the record satisfactorily establishes that, And of course as to the post-judgment experience, that is not within the record, but we are satisfied that if ever that should be examined, there would be no indication of any harm to any valid correctional interest.

Mr. Smith, suppose this Court affirmed in this case and done the Kiwanis and the Rotary, and you name them, 59 other organizations decide to come in and have groups, and finally the prison officials simply say, we cannot cope with all these people, we are going to limit it to ten organizations.

Would that violate the law?

Norman B. Smith:

Well, that is a tough question, if Your Honor please.

But surely they have some discretion to keep themselves from being literally overrun with organizations.

I do not conceive that that is likely to happen, but if it does I suppose a suitable remedy can be devised for it.

By the Court or by the…

Norman B. Smith:

Well, initially by the correction administrators, subject to Court review if it is judicially challenged.

Maybe the Court could appoint a special master to deal with all these continuing problems.

Norman B. Smith:

Well, I would hope that would not be necessary, Your Honor.

We agree that a lot of what they do is right, like their new regulation, we are not about to challenge, we think it is right, the one that regulates time, place and manner.

But we certainly cannot conceive that putting the Union out of business was right.

Thank you, sir.

Warren E. Burger:

Thank you, Mr. Smith.

Do you have anything further, Mr. Safron?

Jacob L. Safron:

Yes, Your Honor, just a bit.

First of all, I would like to point out that in our memorandum in the District Court, this is what we have said.

Page 2 of the memorandum, it is in the record, apparently the plaintiff, that is the Labor Union, is not seeking to establish a national labor relations or type of labor union in the prison system.

That was our statement.

We went on to say more accurately, what they want to form is an organized group of elected representatives of inmates within the prison to meet together and to take their proposals, criticisms, suggestions, and the like to the administration.

Now, that is what we have said in there.

Number two, we never have — let me phrase it this way.

Our situation vis-à-vis the Union, with its office located in Durham is that inmates, and we took that moderate position, could join this outside organization, and that is what I want to emphasize.

We never denied their right to join this outside organization as we have never denied the right for the inmates to join any organization of their choice, we could not do it, we could not perform lobotomies on them.

Now, these are copies of various newsletters which they published; one of which is attached to the complaint which is part of the record in this case.

That tells how an organizer came from California to attempt to organize the North Carolina Department of Correction.

I submit this is part of a national group.

Every one of their newsletters contains the same authorization for representation for collective bargaining.

The one that is in the record contains that, the ones which were published subsequently contain that.

Other than the contribution of the AFL-CIO, is there anything in the record about a linkage between the formal organized labor unions?

Jacob L. Safron:

No, Your Honor, that is the only.

But there is nothing unusual about the AFL-CIO contributing to correctional activities, is there?

Jacob L. Safron:

I cannot answer that, Your Honor, I really do not know.

Now, I would like to say this that the design of our response in this case is based on Packett v. Manson, the decision of the District Court for Connecticut.

That was our basis for response, and we followed the Packer holding almost verbatim.

I would submit that Packett is an excellent discussion of the applicable law in this case, it is well thought out.

Now, the Three-Judge Court never even mentions Packett, just disregards Packett, as if the decision does not exist.

Now, as far as alternatives, under Pell v. Procunier, in North Carolina these prisoners are not held in outer darkness, number one, they may write to anyone, and they write to the press and their letters appear in letters to the editor.

They may write to anyone, they may be visited by the press, unlike Pell v. Procunier.

Jacob L. Safron:

The press can come in and interview specific inmates.

We have an organized inmate grievance commission which was funded this year $125,000, it exists.

According to their records, last year they handled 4,755 complaints from the inmates, so the inmates have full correspondence.

Last Saturday, the Secretary of Corrections spoke before the North Carolina Civil Liberties Union at the annual convention.

There are alternatives.

That was the situation Pell spoke to.

They are not held in outer darkness.

Now, I would submit further, under Pell, the big man theory is applicable.

The organizers of this union, the inmates in this system, as revealed in Footnote No. 16, are inmates who have had a history of violence in this system.

Two are murderers, the third is a con man who has even refused his own identity, and we had to prove in Federal Court that he…

Would they be denied the right to join the AA unit?

Jacob L. Safron:

No, Your Honor, but the AA unit has outside representatives, members of society who have proven their worth in the outside community and have come in to lend their assistance to helping the inmates become rehabilitated and returned to society.

That is the difference here.

These outside individuals are out to serve a social good.

Now, the newsletters, as I showed the Court copies, are published in Durham at that office.

The organization, if it exists, does not exist within the prison system today.

They have never satisfied our regulations and the Federal Court has found that they have not properly attempted to.

Now, if they say it exists and newsletters have been printed, yes, in Durham, and they have come in and as I have said previously, and as their newsletter number 1, attached to the complaint illustrates, it is part an attempt of a national organization. aAnd

I would submit, and all the cases show, that there has in fact been an attempt nationally for these inmates to organize together.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.