Procunier v. Navarette – Oral Argument – October 11, 1977

Media for Procunier v. Navarette

Audio Transcription for Opinion Announcement – February 22, 1978 in Procunier v. Navarette

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Warren E. Burger:

We will hear argument next in 76-446, Procunier against Navarette.

Mr. Svetcov I expect you may proceed when you are ready.

Sanford Svetcov:

Mr. Chief Justice and may it please the Court.

May I at the outset reserve have five minutes of my time for rebuttal.

The question presented by this case is whether is a complaint alleging that State prison officials negligently lost 13 items of a prisoner’s outgoing mail in 1971 and 1972, states a cause of action under 42 U.S.C., Section 1983 of the Civil Rights Act.

This question reached this Court in the following way.

On January 4th, 1974, respondent Navarette, with his present counsel, filed a second amended complaint in the United States District Court for the Northern District of California, solely for damages.

He alleged that while he was a California Prisoner, in 1971 and 1972 at Soledad prison, 13 items of his outgoing mail were not received by his addressee’s.

In his first and second causes of action, he alleged that the defendant deliberately refused to send this letters, either one, in knowing disregard or two in bad faith disregard of prisoner’s First Amendment Right of free expression.

These causes of actions are not before the Court.

In his third cause of action, it is alleged that the letters were not received because of the defendant negligently and inadvertently mishandled the mail.

It is this cause of action and only this cause of action which is before this Court.

Now, there is one matter Your Honor I would like to set to one side at this time.

There is a suggestion in respondent’s brief in this Court that the claim of mail loss involved or resulted in a denial of access to the Courts as well as the denial of free expression.

That is not the case.

I must point out that in the Lower Courts respondent expressly stated following ?the claim against mail interference does not purport to allege denial of access to the Courts? and we take counsel and respondent at his word, He told —

Warren E. Burger:

Where do we find that in the appendix?

Sanford Svetcov:

You find that in the record at page 17.

It is not in the appendix.

It was not printed for the appendix, but it is in the record that was sent from Ninth Circuit to this Court.

It also appears in the reply brief in the Ninth Circuit Court of Appeals at page 7 and page 9.

Now —

John Paul Stevens:

May I ask you question about that particular point?

Sanford Svetcov:

Yes.

John Paul Stevens:

Does it really matter as I understand your general submission, it is an allegation of negligence is insufficient under 1983?

Would it — are you suggesting there are different standards depending on what the constitutional violation is?

Sanford Svetcov:

I am not saying —

John Paul Stevens:

In other words, if it were denial of access to the Courts, perhaps negligence would be enough?

Sanford Svetcov:

Justice Stevens, I am not suggesting that at all.

I am just trying to clear up a matter that seems to have reappeared in the briefs in this Court that I thought had been cleared up early and was not before this Court and I want to make that clear that denial of access is not in question here?

John Paul Stevens:

But your basic position is that even if it were before us your argument would be precisely the same?

Sanford Svetcov:

That is correct.

William H. Rehnquist:

Well, counsel is — are we focusing here on some sort of a gloss that is added to the burden of proof of a plaintiff because action is bought under 1983 or should we focus on the definition of the constitutional right itself?

Supposing this case had been brought on the Superior Court of California, where you do not have to rely on 1983, a Court of general jurisdiction, would your arguments be the same?

Sanford Svetcov:

No, California has a procedure for suing public officials who act negligently and so — in Tort law and it would not be constitutional cause of action at all.

William H. Rehnquist:

Well, but could not you assert a Fourteenth Amendment claim in the Superior Court of whatever county, Soledad is located?

Sanford Svetcov:

As a matter of fact Your Honor, the California Supreme Court has held in the last two years that they have concurrent jurisdiction under Section 1983 and would entertain, and the State Courts may entertain 1983 causes of action in the State Courts?

William H. Rehnquist:

But there is a take 1983 to enable a Superior Court to entertain a constitutional cause of action?

Sanford Svetcov:

Probably not.

I think that there would be an independent State causes of action available?

William H. Rehnquist:

What so you conceive to be the constitutional right that the respondents assert here?

Sanford Svetcov:

The respondent assert an inmate’s right, a free expression in the mail.

I have to remind the Court, and again and again, that it is the inmate who is bringing the suit.

It is not the addressee’s and that kind of gets me to the second part of my argument now, but the point we make in second part of our argument in our briefs is that in Procunier v. Martinez in 1974, this Court did not find a right of free expression in the inmate, it found of right of free expression in the free person corespondent.

Now, if the free person corespondents would bring in this lawsuit, perhaps we would have a different case in so far as what the constitutional right was involved.

We may not have a different case in so far as whether negligence or intent is before us.

William H. Rehnquist:

What if we were to decide in this case that the point reserved in Justice Powell’s opinion in Procunier v. Martinez should be resolved in favor of the respondent, that is that there is a right of inmates to communicate by letter?

Do you think that constitutional right would be violated if a prison truck carrying mail down to the local post office negligently went off the road?

Sanford Svetcov:

Absolutely not Your Honor.

William H. Rehnquist:

And yet that does not turn on anything to do with 1983?

That turns on a definition of the constitutional right, does it not?

Sanford Svetcov:

Well, my understanding of 1983 is that you do not state a cause of action under 1983, unless you can first find the constitutional deprivation.

Thurgood Marshall:

What happened if the truck went off road every day?

Sanford Svetcov:

Your Honor.

Thurgood Marshall:

Accidentally?

Sanford Svetcov:

I think that if the truck went off the road every day —

Thurgood Marshall:

Accidentally?

Sanford Svetcov:

Accidentally, that a cause of action could be stated under Your Honor’s formulation in Estelle v. Gamble that that might constitute sufficient evidence to support a claim of deliberating difference and respondents here have two claims of intentional Tort of deliberate refusal, a deliberate indifference under which he may attempt to assert that what happened to him —

Thurgood Marshall:

How many times his mail negligently not delivered?

Sanford Svetcov:

The Allegation in this compliant is that 13 items of mail over a period of one-and-half years were not delivered.

Sanford Svetcov:

I should point out Your Honor that the record in this case shows that over 150 pieces of special purpose mail, that is mail to attorney’s, reporters, courts, public officials were mailed on behalf of the respondent and this is in addition to routine corespondent to family and friends of which no record is kept in the California prison system.

So what we are looking at is 13 pieces of mail, out of at least more than 150 that records were kept of, we do not know how many more of which no records are kept.

Your Honor in a case l tried in the US District Court two years ago concerning San Quentin prison, a prison comparable in size to Soledad, the record was undisputed that over three to four thousand pieces of mail were handled per day.

If you translate that into year-and-a-half, you are talking in excess of one-and-half million pieces of mail and all we have a complaint in this case is that 13 pieces were lost in that period.

13 out of one-and-half million is a very small fraction.

We have no other allegation in this compliant that any other prisoners were subjected to —

Thurgood Marshall:

But that submits, for the purpose of this case that is submitted?

Sanford Svetcov:

That thirteen pieces were lost.

Yes

Let me get back to my discourse —

Byron R. White:

Before you get back, you say you — we approach this case on the assumption that 13 pieces were lost negligently?

Sanford Svetcov:

That is the allegation in the complaint.

Byron R. White:

And so, you say it was just through negligent conduct in the sense that — such as Mr. Justice Rehnquist was suggesting of just negligence — they lost them in a truck somewhere or in a fire or is that what is your?

we approach it that way or –?

Sanford Svetcov:

Let me quote from respondent’s brief to this Court —

Or that he thought he following a regulation and just misread it?

Well, in this Court, respondent states the following.

That the mail was?

Unaccountably lost or mislaid due to inadvertent mishandling?

Byron R. White:

So it is sort of a — it would just be an unconscious act which — just a negligent act?

Sanford Svetcov:

Now, there was one piece of mail in which he makes a specific allegation that it was refused mailing and that then a reason was given for the refusal, but I find that not to bear on this negligence claim because there was a deliberate refusal and a reason was given that does not fall within our negligence cause of action.

William H. Rehnquist:

Well, but if you read page 12 of the appendix at paragraph two of the third cause of action, it says defendant negligently and inadvertently misapplied the prisoner mail regulation?

Sanford Svetcov:

That is correct Your Honor.

William H. Rehnquist:

It seems to me you could, under the rules of pleading show that they refuse to mail that because they did not properly understand the regulation rather than the idea that just got left in the drawer when everybody else’s mail was —

Sanford Svetcov:

Well, Justice Rehnquist that might be true in the ordinary case where only one cause of action was alleged, but the fact is in this case three causes of action are alleged with respect to the mail and in the first two the allegations are that there was a deliberate refusal to send the mail, deliberate refusal.

Now, in the third cause of action, the allegation is a negligent and inadvertent mishandling and I take it — and misapplication of the regulation, but I take that to mean pure carelessness, not that they misunderstood the rules.

I took that to be what was happening with respect to the deliberate refusal.

John Paul Stevens:

But Mr. Attorney General you are reading the brief rather than the pleading as Justice Rehnquist points out, the language is (Inaudible) result of interference with or confiscation of such correspondence by reason of negligence and understanding the rules and so on, where confiscation and interference certainly is not just ordinary mishandling, is it?

That is not a truck going of the bank of the river or whatever it was?

Sanford Svetcov:

Well Your Honor, as I understand these three causes of action, as they have been pleaded through four complaints in the lower courts, they were dealt with below as two causes of action for deliberate refusal, a third cause of action for negligent loss of the mail, that is the way they have been dealt with below.

Sanford Svetcov:

This is not a Haynes v. kind of situation where respondent does not have counsel, he has counsel.

The counsel was the same counsel throughout from the Second Amendment complaint on and I have to take counsel at his word that what he means by his complaint is that the mail was unaccountably lost or mislaid due to inadvertent mishandling.

John Paul Stevens:

You think we should look at the brief rather than the pleading itself?

Is not the test, still the test under any unconceivable facts can be shown under the pleading that would not tie under relief, so forth and so on?

Sanford Svetcov:

If under any conceivable facts, if the allegation is confiscation, it seems to me that confiscation can be dealt with a trial under the twin allegations that are not before this Court, namely deliberate indifference.

John Paul Stevens:

Well, but it is negligence in the sense that he did not study the regulations and realized that this was not the kind of mail he was supposed to refuse to deliver.

The particular act was intentional, but the negligence is not failing to study the regulation. Then there is a second allegation by negligence of the supervisors not training their people on how to handle the mail.

That is not the kind of negligence that you are talking about with a truck going off the road, is it?

Sanford Svetcov:

Well, that is the kind of negligence which the Court of Appeals held stated a cause of action and that is the kind of negligence we took in our petition to Certiorari to this Court to ask this Court to say it does not state a cause of action.

William H. Rehnquist:

Well Mr. Svetcov let me interrupt you once more then I will try to keep my mouth shut because I have taken more of your time than I should.

Is it not possible that the Court of Appeals could be wrong and yet this part of the complaint state a claim for relief?

Sanford Svetcov:

Only if it was construed to state a claim for relief for a deliberate indifference and that the confiscation was repeated, was so repeated as to constitute a deliberate indifference to the right of free expression, but to say that an active inadvertence and mistake constitutes a Constitutional deprivation and opposed to a tort, I have difficulty with construing as a Constitutional deprivation.

My point is, is that if it happens often enough as a alleged, the answer is that causes of action in deliberate indifference recognized by this Court.

It is not in a windfall cause of action in negligence.

In other words, negligence is traditionally dealt with in Tort law.

Let us put ourselves in the area of injunctive relief.

I suppose that if respondent was seeking an injunction, he could by requesting a simple order and do away with an entire body of top Tort law.

All the public officials will be told thou shall not be negligent and I am sure a District Court can enter such an order, but whether such an order would be efficacious is doubt and the point I am making is that it seems to me that 1983 is a deterrent Statute and not a compensation Statute and the deterrence that it seeks that is it is aimed at is the deterrence of deprivations of Constitutional rights.

Thurgood Marshall:

That you should know, destroy this man’s mail negligently or non negligently, what is wrong with that and I use word negligently as you use it which is not the way I use it?

Sanford Svetcov:

Your Honor —

Thurgood Marshall:

But tell me what do you mean by in this case, what was the negligence?

Sanford Svetcov:

The negligence, as I understand it, is the unintended, unintended conduct which resulted in a loss to the plaintiff, unintended —

Thurgood Marshall:

Well, what about those words, even then unintended in those words where you deliberately, is not what they add up to?

Sanford Svetcov:

The allegation in causes of action one and two is deliberate.

Thurgood Marshall:

And three too?

Sanford Svetcov:

The allegation in cause number three has not been construed to be an allegation of deliberate refusal.

It has been construed to be an allegation of negligence.

Thurgood Marshall:

Negligence in understanding the Statute, understanding the rules or negligently going to sleep or negligently driving off the road?

Sanford Svetcov:

The complaint alleges negligent and inadvertent misapplication of the rules.

Thurgood Marshall:

But do you put inadvertent in the same place as negligence?

Sanford Svetcov:

I put it in the same place because if that is the allegation in the complaint.

The complaint says defendants negligently and inadvertently misapplied the prisoner mail regulations and as I understand inadvertence —

Thurgood Marshall:

Well, negligently — look, well, let me understand this.

The man says it is a letter written to his lawyer and the man?

Negligently misunderstands the rules and burns that letter off,? is that negligence?

Sanford Svetcov:

He burns it up?

Thurgood Marshall:

Yes.

Is that negligence?

Sanford Svetcov:

No that is not negligence.

Thurgood Marshall:

Was that possibly what they are talking about here?

Sanford Svetcov:

I do not think that is what they are talking about at all.

Thurgood Marshall:

They could not be though, could not they?

Sanford Svetcov:

MI have to take counsel at his word when he says —

Thurgood Marshall:

Well, he said —

Sanford Svetcov:

Unaccountably lost or mislaid due to inadvertent mishandling.

He is not talking about burning it up Your Honor.

Thurgood Marshall:

He said negligently on the rules.

What did he say about the rules?

Sanford Svetcov:

He said negligently and inadvertently misapplied the rules.

Thurgood Marshall:

That is not negligence as I understand it?

Sanford Svetcov:

Well, Your Honor that may well be true. The point is that is the understanding —

Thurgood Marshall:

He did violate.

Do you understand the meaning of violated the rules, inadvertently?

Sanford Svetcov:

And unintentionally, yes.

Thurgood Marshall:

But he did violate the rules?

Sanford Svetcov:

That appears to be the case or at least he misapplied them, whether violated mis apply are the same thing, I do not know.

He may have applied a different rule to — a rule to the wrong type of mail.

That is one way of showing it.

Thurgood Marshall:

And the trial would (Inaudible)

Sanford Svetcov:

At the trial we will still find it out because there can be a trial under the first and second causes of action, Your Honor.

Byron R. White:

Is the single question that we — does the single question on which we manage certiorari, there was a limited grant, was there not?

Sanford Svetcov:

There was a limited grant.

Byron R. White:

And does that include the question of whether there indeed is a Constitutional right that with respect to the mail or do we adjudicate this case on the assumption that there was a Constitutional right which the prison guard should have known?

Sanford Svetcov:

Well, the certified question reach as follows Justice White.

Whether negligent failure to mail certain of a prisoner’s outgoing letters states a cause of action under Section 1983.

This was addressed to the determination of the —

Byron R. White:

So you think then arguably anyway, the case involves a question of a — even if there was a deliberate loss here, a deliberate refusal to mail that the — whether or not the state is viable or because no adjudicated right in the mail had ever had the — would have been known by the –?

Sanford Svetcov:

Oh! Yes, that is our position.

That is correct.

Byron R. White:

Is that at issue here, you think?

Sanford Svetcov:

That issue is herein so far as the negligence claim is concerned because even as to the negligence claim there must be an underlying Constitutional deprivation and regrettably Your Honors did not certify the first two questions because we would have welcomed, we would be happy to be arguing that there is was no First Amendment deprivation in 1971 and 1972, even if there was deliberate refusal to something like that.

Potter Stewart:

Well, you do argue that in your brief, at least –?

Sanford Svetcov:

Well we argue it, but we do argue it as a backstop to the negligence.

Potter Stewart:

That is subsumed in the question, is it not?

Sanford Svetcov:

That is subsumed in the question certified.

Potter Stewart:

If a deliberate interference with the mail would not constitute a constitutional violation then a fortiori a negligent one does not, that is the point is it not?

Sanford Svetcov:

That is absolutely correct.

Byron R. White:

And even if a — and even if a deliberate, even if a deliberate loss of the mail would be a violation of the constitutional right.

It maybe that the state might not be liable because the right hadn’t been sufficiently adjudicated?

Sanford Svetcov:

That is absolutely correct and that is what Your Honor said in Procunier v. Martinez.

That prior to that case the State of the law as to prisoner mail was totally uncertain and prison officials had no basis for knowing what to do with it and it seems to me that Procunier v. Martinez applies precisely to our defendants.

How are they expected to anticipate this Court’s decision in 1974.

Byron R. White:

So, if we agree to you on that particular point, we would never, we would not need to get any farther without?

how much 1983 deals with just mishandling, negligent mishandling?

Sanford Svetcov:

That is correct.

William H. Rehnquist:

Then we would not get to the point of the question of whether there is in fact the underlying substantive constitutional right because at least it had not been annunciated prior to that decision?

Sanford Svetcov:

That is right.

You could resolve the case that way.

We had hoped that this case would be decided on the lead point, whether under any circumstances, negligence, negligent action could invade a constitutional right and our position on that is as stated in our brief is that that cannot and should not.

Potter Stewart:

Of course, another way of putting that might be that some constitutional rights are rights against deliberate action, that the right itself is against deliberate action, not against negligence?

Sanford Svetcov:

Well, Your Honors have decided a number of cases on about a number of constitutional rights and I can think of no case yet decided by this Court, where you did not require some sort of intent and I am thinking of Washington v. Davis where you say there has to be a purposeful denial of equal protection.

I am thinking of Estelle v. Gamble.

There has to be a deliberate indifference before you can have cruel and unusual punishment.

I am thinking of the whole body of Fourth Amendment law.

All illegal arrest and illegal searches and seizures are deliberate acts.

In Bishop v. Wood, You Honor, in the due process case involving the employer and the employee that Justice Stevens wrote, my recollection of your language is that the due process clause was not to be used as a means for federal course to resolve all mistakes by public officials that there has to be some sort of motive to deprive of a right.

Potter Stewart:

I suppose a — if a mail truck negligently hits somebody on his way to church, he would hardly have a claim that the government had interfered with his free exercise of religion?

Sanford Svetcov:

Well, that reminds me of some hypotheticals in amicus’ brief.

The first hypothetical was that if a prisoner was walking across the exercise yard and negligently run down by a truck driver, that was — that he would concede did not state a clause of action, but somehow if the prisoner was walking across the yard, and was on his way to church, that would invade his First Amendment right to worship and I simply cannot see that unless the truck driver knew that the fellow was going to church and ran him down that how the First Amendment right could be implicated.

Warren E. Burger:

And ran him down deliberately?

Sanford Svetcov:

Right.

Ran him down deliberately.

Warren E. Burger:

Not negligently?

Sanford Svetcov:

Not negligibly.

He could not — If he knew of the right and he ran him down, I think an inference would be drawn.

Warren E. Burger:

Well, if he did it deliberately, you do not need to call on the First Amendment, do you?

Sanford Svetcov:

We could try him in the State Court for murder.

William H. Rehnquist:

What if he just did not like the guy?

He was not going to prevent him from going to church, he just wanted to kill him?

Sanford Svetcov:

We try him in State Court for murder.

Thurgood Marshall:

Would there be a 1983 clause of action for violation of his religious freedom?

Sanford Svetcov:

As I understand this Court’s decisions, there has to be a combination of an intent to do the act and a consciousness that in some fashion, that his constitutional right would be implicated.

John Paul Stevens:

Well what about taking somebody’s life, in the course of your official duties, on purpose?

Sanford Svetcov:

You know that the debates on this act considered that when in connection with Section 2 of the Ku Klux Act and if you recall the original version of that act, listed a certain number of crimes, murder, mayhem, assault with respect to the Ku Klux Clan and the opponents pointed out that the due process clause has never been sought to protect life, liberty or property.

Those — that those kinds of actions —

John Paul Stevens:

You say a prison guard who beats up a prisoner is it not violating 1983?

Sanford Svetcov:

Intentional —

Thurgood Marshall:

The Scheuer’s —

Sanford Svetcov:

Cruel and unusual punishment’s implicated.

Thurgood Marshall:

Now, the Scheuer’s case said that —

Sanford Svetcov:

I just said that —

Thurgood Marshall:

The only way to apply is for the guard to say as he would shoot them, that I am shooting you to deny you your constitutional rights as this Court said in the Scheuer’s case, am I right?

Sanford Svetcov:

It said that the word willfully in Section 242 of 18 U.S.C required proof either by direct or circumstantial evidence that the defendant intended to deprive the victim of a constitutional right.

Thurgood Marshall:

So which means he had to say he had to say when shooting him, I am shooting you for the purpose of denying your right?

Sanford Svetcov:

Yes, either to say that or have told someone that on his way to the shooting.

Byron R. White:

Let us say its perfectly clear they deliberately — a state officer deliberately murders some prisoner he has just arrested.

He just does not like him.

Is that a deprivation of life without requiring to say it?

Sanford Svetcov:

No, I do not think so.

I do not think that this Court has ever held and I do not think that the debates about the (Voice Overlap)

Byron R. White:

But if he deliberately, if he deliberately took his life to keep him from going to church, that would be a 1983 action?

Sanford Svetcov:

In addition to the murder, a cause of action in State Court.

Byron R. White:

I know, I am asking about 1983?

Sanford Svetcov:

I understand that Your Honor.

I think it would —

Potter Stewart:

You do not need to concede that.

Sanford Svetcov:

I could ?

Thank you, Your Honor.

John Paul Stevens:

May I ask you one question?

Sanford Svetcov:

Certainly.

John Paul Stevens:

Do you think, there is a difference between a negligence case involving a truck going of the road say and losing the mail for that reason and a negligence allegation such as one may read this complaint as making, in which the negligence alleged is that the officers did exactly what they thought they were supposed to do and the particular acts they did were deliberate in that sense, but there was negligence either in their failing to read their regulations or in their superiors in instructing them.

Is this case the same in your view as a case involving, just sloppy handling of a mail?

Sanford Svetcov:

Well, you know that truck driver thought that he was doing the right thing just before he went of the road too.

He thought he was driving a beautiful automobile.

John Paul Stevens:

You think it is the same?

Sanford Svetcov:

I think it is the same.

I have been thoroughly distracted from my argument, Your Honor, but I feel that all the points that I wanted to cover have been covered.

Warren E. Burger:

That often happens here.[Laughter]

William H. Rehnquist:

It is a great tribute to your question.

Sanford Svetcov:

Thank you very much, Your Honor.

Warren E. Burger:

Mr. Adams?

Michael E. Adams:

Yes.

May it please the court.

I would like to say, initially that we are premature in standing here before you for the reason that we have not yet had our trial.

We have not yet developed the sufficient record to provide this Honorable Court with the detailed information, the factual predicate to reach the determination about whether and to what extent negligence can stand as a cause of action for First Amendment violations.

William H. Rehnquist:

With the record that you are not pre mature in the sense that the Ninth Circuit help that there was a constitutional violation under some circumstances for failure to allow a prisoner send mail out of the prison and that 1983 authorized the statement of a claim for the violation of that right negligently?

Michael E. Adams:

Well, the Ninth Circuit in reaching that determination was applying existing law that many other Circuits, indeed almost all of the other Circuits had already reached the similar decisions with respect to and was not purporting to or did not carry, if you will, the burden on its shoulders that I would believe that this Court does.

If this Court wishes to resolve an area that is to some extent muddy and may call for some clarification, then it would simply seem to me appropriate that Your Honors have the benefit of a full and complete record, indicating just what was going on in relation to the regulation of mail from defendant Procunier on down to the mail room clerk.

How was responsibility distributed? Who was acting, who was failing to act and with what degrees of intent?

We could have anything here from inadvertence to gross negligence to recklessness to deliberate conduct and on the other end of the extreme (Voice Overlap)

Potter Stewart:

And a deliberate conduct counselor?

Michael E. Adams:

I am sorry Your Honor.

Potter Stewart:

In so far as the conduct may have been deliberate that is covered by your first two causes of action —

Michael E. Adams:

Exactly.

Potter Stewart:

— which are not a issue here?

Michael E. Adams:

That is correct Your Honor, but if we then, I just want to point out —

Potter Stewart:

In the presence posture of the case there is no question however this court decides this case that here you got to remand for a trail on your first two causes of action that is clear, is not it?

Michael E. Adams:

Yes Your Honor that is clear and in a way that stands as an argument at least from the standpoint of judicial economy for making the remand now and watching the case and allowing and considering to bringing of it back, once the trail has been had and a sufficient record developed so that a more decisive and clear, a more effectively — effective standard would be more meaningful and provide more guidance to the other Circuits could then be divined.

Thurgood Marshall:

Mr. Adams do you think that we realize that when we voted to take this case?

Well, could not you assume that and proceed with your argument?

Michael E. Adams:

Certainly, Your Honor.

Let me just tax down that initial point.

Thurgood Marshall:

It saves judicial time?

Michael E. Adams:

If it is the worse then if the Court to reach the determination at this point in respect of negligence, let me say that there are two basic reasons that it seems to me that the negligence should be allowed as a cause of action in respect of the First Amendment and they go to the purposes of that Amendment, the purposes that Congress had in mind, those purposes being as I understand them, deterrence and compensation.

In dealing first with deterrence, that this Court carefully explored the question of the extent to which compensation should be provided and the extent to which immunity should be allowed to state officials in relation to conducts involving the exercise of discretion and in the cases of Scheuer v. Rhodes and Wood v. Strickland that I am sure Your Honors are extremely familiar with, that balance was struck with a certain degree of deference given to the importance of state officials engaging in decisive action and in acknowledgment that the public interest called for that.

Now, what we may well have here on the part of those officials who were exercising discretion in relation to the regulation of prisoner mail, is a failure to act, an abdication from the exercise of any discretion of whatsoever, a failure to look at the options.

And if petitioners’ request is honored by this Court and if the opportunity to obtain money liability against such state officials as those is the effect of result of a determination by this Court.

That in effect is granting absolute immunity for a complete abdication.

It undercuts the very moving rationale of Scheuer v. Rhodes and Wood v. Strickland.

If we look for a moment for guidance to the common law as this Court has in deciding immunity questions in relation to 1983, we will find that the common law when it deals with conduct that is not the exercise of discretion, but rather ministerial in character, liability negligence is generally allowed, this is the prevailing rule.

William H. Rehnquist:

Are you talking about the contours of the First Amendment right or about some limitations that 1983 puts on the on the First Amendment right?

Michael E. Adams:

l am talking about limitations that 1983 would put on litigations under any constitutional guarantee, including the First Amendment.

In other words —

William H. Rehnquist:

You think that if you and brought an action in the Superior Court of California under the constitution, assuming you could do that where you were not limited by whatever limitations 1983 may impose, that there be no question that you could recover safer negligent failure to get the mail out of the prisoners as a result of a truck accident?

Michael E. Adams:

If we assume in your hypothetical Your Honor, that common law immunities and limitations to those common law immunities as established for example in California, govern, yes I would have no problem with immunity because in dealing with negligence at least in the form of failure to act, inadvertent failure to act, we are not talking about the exercise of discretion and California has made perfectly clear the in case that I have cited in by brief Johnson v. State that even where discretion ought to be exercised, but in the actual fact of the instance it caused an injury, it was not, then the immunity, that ordinarily would enclose that particular official or the governmental entity that he represents is not available and that official stands fully exposed in negligence liability as though act were ministerial from the outset.

William H. Rehnquist:

Well, what if you have a situation where the city has a park with an amplifier system that it makes available to all sorts of different political groups and you represent a group that has had the park made available to it and the amplifier system breaks down due to failure of proper maintenance on the part of the city, is that a violation of your group’s First Amendment rights?

Michael E. Adams:

Okay, I would say not Your Honor.

William H. Rehnquist:

Why is that different from a mail truck running off the road?

Michael E. Adams:

Well, let me answer that in two ways.

First of all let me say at the outset that I quite agree with certain of the questions by the Court addressed to the petitioner that my third cause of action deals with misreading of the regulations and it does not purport to include factual inadvertence by subordinates, subordinate prison officials such as posed in that mail truck hypothetical.

In answer, however, to your hypothetical and also to a situation of misreading of regulations, such as directly as raised in my third amendment, third cause of action, I think we need to look at the overall course of action, the overall pattern or implied policy that is being persuaded by the subordinate officials to decide if there is liability or not

In other words, it is a balancing test that needs to be undergone and we need to look at the severity and degree of the harmless being risked to the people at the — who where subject to the power of that particular governmental official and I would concede that in isolated instance of inadvertent conduct by an official who is otherwise prudent, you know, who is not an official who gauges and gauges habitually in careless conduct be that careless misreading of that regulations or be that being careless in driving the mail truck down the road then there is no liability under 1983 for such an official.

Thurgood Marshall:

Is there any carelessness under 1983 at all?

Michael E. Adams:

Well, indeed I would believe that there is Your Honor as I sought to contend.

Thurgood Marshall:

Well certainly 1983 was Ku Klux Clan Act and they were not killed?

Michael E. Adams:

Certainly not, but the governmental official to fail to track down and bring the Ku Klux Clanners to justice many times were and this is something that was squarely in the minds of the Congress, the members of Congress who were debating that and I quoted in by brief Your Honor —

Thurgood Marshall:

Yeah I read that.

Michael E. Adams:

Certain places where —

Thurgood Marshall:

There is quite a lot in the other side too?

Michael E. Adams:

Well, I do not mean to take up the Court’s time with quotes.

I probably as a matter, as an upshot of the legislative history —

Thurgood Marshall:

Well why would —

Michael E. Adams:

It is rather ambiguous quotes can be raised from both sides and I think we need to look at current position to decide —

Thurgood Marshall:

What do you do about the mail truck questions?

The mail truck deliberately runs upon the curb and hits somebody?

Michael E. Adams:

Well, it depends whether that person has a constitutional right —

Thurgood Marshall:

It was a careless driving that is the 14th time he did it, [Laughter], does that valid 1983?

Michael E. Adams:

I think probably not Your Honor, The distinction I want to make in answer to your hypothetical is that if there is no constitutional right involved, it is a matter for the State Courts.

Thurgood Marshall:

It is just near to that.

If you drive the mail truck upon the curb 13 times in a period of two years and hit somebody?

Michael E. Adams:

Well, if those 13 times were in, were each time directed at picketers, let us say who are exercising their First Amendment rights along the sidewalk, yes, there we have a course of conduct and even if —

Thurgood Marshall:

By the mail truck driver?

Michael E. Adams:

If he is using a government instrumentality to interfere with First Amendment rights I think we got 1983 cause of action, but if they were simply pedestrians or people that he did not like —

Thurgood Marshall:

And all he did was he ran through a red light?

Michael E. Adams:

Well, I would adhere to the distinction of a nice worded instance versus a course of conduct.

Thurgood Marshall:

What my real problem —

Michael E. Adams:

Although that really seems to his intentionality in your hypothetical.

Thurgood Marshall:

And what you say you want to prove that these people deliberately denied them the rights because they did not understand the regulations.

Whatever you are trying to say, why did you not say it, you are stuck with your language?

Michael E. Adams:

Why did not I say in the complaint?

Thurgood Marshall:

Or why did you say that you are only talking about negligence?

Michael E. Adams:

Because from the two items of mail where there are any facts at all in regard to what happened, it would appear that what occurred was just a blatantly negligent misreading of the applications.

We have eight items of mail that were returned to Mr Navarette from the correction of counselors named in the complaint and why did they return that mail to him because the mail was not legal, not business and not personal they said in their note to him.

Now, that had absolutely nothing to do with the regulations —

Thurgood Marshall:

Is that in this record?

That is all we want?

Thurgood Marshall:

That is all I (Inaudible)

Michael E. Adams:

It is not in the record before Your Honor, now it is in here and I can give you about —

Thurgood Marshall:

I am not talking about that because I have not seen it?

Michael E. Adams:

I believe that it is physically in the clerk’s office —

Thurgood Marshall:

I do not go and read them till after the case is argued?

Michael E. Adams:

Yes Your Honor.

It is not in the appendix, that is been put in front of Court.

Thurgood Marshall:

But you did say they are only talking about this negligence and to me negligence means a grandeur’s red light.

To me when you say negligence, I do not get the idea that you mean somebody deliberately misread rules or regulations?

Michael E. Adams:

Certainly not deliberately misread rules and regulations and if that is what we have, then my existing causes of action that are not before this Court would cover the matter, but if on the other hand we have a sloppy misreading of the regulations or sloppy practices in terms of unwritten, the unwritten supplemental rules that may well exist at the Soledad Prison level that I do not know about yet because all I have received in the summary judgment motion was a state-wide regulations that Procunier himself drafted.

I do not know what existed at the State, at the prison level, but there may well have been negligent misinterpretation of things there.

The refusal send the packet of drafts, writs of Habeas Corpus in December of 1971 after the prison law project, may would have been a negligent misunderstanding by the mail room clerk as to his duties in the matter.

William H. Rehnquist:

Is not your part of your problem here an effort to plead a 1983 complaint out of a personal injury form book really?

Michael E. Adams:

I do not think so Your Honor.

Michael E. Adams:

Certainly no personal injury form book was used by me in drafting this complaint.

It was an attempt to match the law under 1983 with the facts of this case as I understood it.

Lewis F. Powell, Jr.:

Mr. Adams I have understood what you have said, you would agree that an isolated act of negligence would not duplicate Section 1983?

Michael E. Adams:

That is correct Your Honor.

Lewis F. Powell, Jr.:

In this case as I understand the facts 17, 15 or 17 items of mail were not delivered whereas —

Michael E. Adams:

25 items Your Honor.

Lewis F. Powell, Jr.:

25, I thought the other counsel said 17 or 15.

Michael E. Adams:

Well, he miscounts.

Lewis F. Powell, Jr.:

Well, how many were delivered I will ask you to answer that?

Michael E. Adams:

How many were not delivered?

Lewis F. Powell, Jr.:

No, but you told us 25 were not delivered. How many items of this type mail were delivered?

Michael E. Adams:

Opposing counsel is correct on that when he says something over 115, my counting would indicate 160 to 170 is a rather illegible mail lot that was supplied by petitioner at the time of summary judgment, that is part of this record and it is difficult to count from it, but it is something over 150.

So we are talking about 1 in 6 or 1 in 7 of this man — a ratio of 1 to 6 or 1 to 7 of this man’s mail were interfered with.

Lewis F. Powell, Jr.:

Your position then is that 25 acts of negligence at over 160, 175 constitutive course of conduct?

Michael E. Adams:

It may well Your Honor.

At this point I do not know I need to find that out.

This is simply another reason why we have an insufficient record in to, my view for the Court to make a determination.

We are not talking about a concept that can neither be plugged into 1983 or taken out of 1983, whole class.

We are talking about a concept of reasonableness in relation to risk to find whether that is already interwoven with the decisions of this Court, particularly the qualified immunity decisions.

That depends on the meaning of particular Amendments and I would point out Your Honors that a decision in favor of respondents’ position here does not open any Pandora’s box for a greater volume of cases because we are talking about a decision simply in relation to the First Amendment.

Warren E. Burger:

Well, I doubt counsel the Court in narrowing the question as it did, just trying to pass on what the Ninth Circuit’s opinion said his allegations, your client’s allegations that state officers negligently deprived him of those right state a 1983 cause of action and that that is the only issue in the case not what kinds of acts or negligences were not, that is for the trial, but whether negligence, the question here is whether negligence is ever recovered under any circumstances by 1983 at least under the narrow limited question on this review was granted?

Michael E. Adams:

Yes and my answer in brief to that Your Honor would be that there is no bar within the intrinsic meaning of the First Amendment to negligence such as there is in the Eighth Amendment, intrinsically that calls for deliberate in different standard.

The Fourteenth Amendment, equal protection for example, I would agree with counsel that this Court has found a requirement of intent on the part of the acting state officials intrinsic in that particular constitutional guarantee.

However when we look at the First Amendment —

Thurgood Marshall:

Shall.

You used the word shall which is a intent (Inaudible) Fourteenth Amendment, shall?

Michael E. Adams:

Yes, I would — that language of the Fourteenth Amendment is, you know, is consistent with the decisions of this Court and supports the meaning of intent.

Not all constitution guarantees are framed in terms of the state of mind of the acting state official and the First Amendment is one of those.

It does not, if Your Honors would consider cases like Edwards v. South Carolina, Feiner v. New York, cases that involved police conduct with situations that are unruly, possibly involved disturbing of the peace, we have a speaker or some marchers exercising First Amendment rights.

The question about whether First Amendment rights were involved there or not does not turn on the state of mind of the police official.

Michael E. Adams:

It does not turn on whether he was exercising the utmost diligence in protecting their rights or rather he was a little bit reckless or negligent or whatever you might say in regard to those rights.

It does not turn on that, but rather the independent examination by this Court of the record.

So we are not talking about an intent obstacle in the First Amendment.

Potter Stewart:

First Amendment says shall also so, does it not?

Michael E. Adams:

Well, it says there shall be no law.

Potter Stewart:

It says Congress shall make no law.

Michael E. Adams:

But when we go beyond the making of the laws —

Potter Stewart:

(Voice Overlap) of the press, says shall same as legal protection?

Michael E. Adams:

Well, in relation to the initial maker of the law, but then those laws are applied and —

Potter Stewart:

Because if you wanted to be completely literal as with a First Amendment case at all, because that does not involve Congress, does not it?

Michael E. Adams:

Well, that is correct, Your Honor.

John Paul Stevens:

Mr Adams I wonder if Justice Stewart’s focus is on the word ?to make no law?

Is part of your submission that in the negligent application of regulations you are talking about a law, a legal rule as applied to your client.

It does not really make much difference whether the law is drafted.

They say this mail should be destroyed or if in the practice repeatedly they destroy certain kinds of letters.

That is in the nature of the law abridging the freedom of expression as applied to your client, whereas when a truck goes off the road, it is not even arguably of law abridging any body’s freedom of expression, is that the distinction you are seeking to draw?

Michael E. Adams:

Yes Your Honor, I would be in agreement with that — on in — I seek to provide a comprehensive opportunity for my client to prove in Court that in one way or another, in the intentional, whether in through the deliberate drafting of the law or whether the — to an negligent follow up in the preparation of those regulations, be that follow up on the part of the supervisory defendants in failing to train or supervise or get feedback from the defendants on the lines so to speak in terms of mail evaluation or negligence in terms of the defendants on the line in terms of trying in it with some modicum of prudence and diligence to be consistent, to follow the — would at least to be a reasonable meaning of those regulations than those rights have been violated.

There are few other points that I would like briefly advert to that arose in the questions of the petitioning attorney.

First of all briefly in relation to the right of access.

I would say at length on footnote 2, page 3 of my brief, why I — I now press it even though indeed I did not, now in much respect and advisably concede the right of access in written argument, both before the District Court and Court of Appeals.

I, in terms of the coverage, the constitutional coverage of the conduct here involved, the sending and receiving of — well, the sending of mail, the First Amendment free expression as I see it is completely coterminous with the right of access.

The distinction then, the materiality of the right of access has to do only with the history of the development of these rights.

The right of exercise is an older right and has a longer history to it.

The distinction in my view became more material, when Wood v. Strickland was decided because I talked about settled constitutional rights and I think there is a — well there is — if this Court were to take petitioner’s view that only in a — only a decision by this Court itself were to establish a right to be settled within the meaning Wood v. Strickland then obviously I am out in cold as far as free expression goes because although as I have argued in my brief there were some District Court decisions, that in my view reasonably and very clearly let defendant Procunier know he being party in a couple of those suits and as well as some of the other defendants know, that there was prisoner free expression already, reasonably and advance in 1971-72.

There is no decision by this Court until Martinez V. Procunier where there was the beginning of that acknowledgment of that right and then Payne V. Procunier was shortly thereafter where it was made express.

Indeed prisoners have a certain measure of First Amendment for the expression.

In terms of right of access, Johnson v. Avery was decided much earlier and that would have — could have been a foundation for at least that rate.

So indeed candidly I made the our concession before.

If the Court wants to deal with the question of — that I think really is not properly before this Court, there is a matter of the question on which cert was granted, but if the Court should wish to deal what with it, I would suggest that it might in the interest of making a decision that gives good guidance to the Circuit Courts and the Lower Federal Courts will be reading this decision to look at all the rights — the facts fairly raised and I think that the facts, do fairly raise right of access as well as free expression.

There is another question that maybe in the minds of this Court, in relation to the allowing of negligence that I would like to address myself to briefly and that is whether the relief that might be available in State Court, is it really sufficient for the kind of harm that we are speaking of here?

Michael E. Adams:

And I would suggest to Your Honors that is really not.

That we need a Federal Forum, the Forum of 1983 and a federal perspective in order to properly grant a compensatory relief because we are talking about different interest, not just common law interest, injury to person, injury to property, we are talking about constitutional interests.

And as Justice Harlin said very eloquently in his concurring opinion in Roe v. Pape, those interests are fundamentally different in character and often would call for different measure of damages in order to provide compensation.

For example in the Troy v. Dallas case, 356 U.S. involving a decision by this Court that Eighth Amendment was violated by the denationalization of an individual.

There is no physical mistreatment, but yet that the total destruction of the individual’s status in an organized society violated that constitutional right.

There would have been no damages in Common Law and what about the right of an individual to vote or to attend an integrated school, what is?

the Common Law on money damages there, and what about Mr. Navarette right here, Common Law perspective handful of mail what is at work?

But when we look at it from a constitutional perspective, we are talking about this man’s effort to communicate with the world outside and that has a certain value in terms of rehabilitation of this man.

When a person —

Warren E. Burger:

In conceding all that, again, I thought the issue before the Court was whether negligence producing that consequence is covered by 1983?

Michael E. Adams:

Yes Your Honor and although this has not been squarely decided by this Court, I would submit that if a Court would, it would be an logical and plausible extension from the immunity decisions that this Court has made that negligence should lie, then the Court has looked in the past and in Wood V. Strickland and Scheuer V. Rhodes to the common law for guidance.

And if we look here to the Common Law, we will find that state officials, the public officials are subject to negligence liability where their acts are ministerial in character and not the active exercise of discretion and all I am asking —

Warren E. Burger:

Liable in the State Courts, is what you mean do you?

Michael E. Adams:

What is that now?

Warren E. Burger:

Do you mean liable in the State Courts or liable under 1983?

Michael E. Adams:

That would be, I would indicate, that would be a liability in the State Courts, that is the way common law resolves that problem.

In — well, that is not something that should be followed as an automatic matter in dealing with 1983.

It is — there being a greater interest in attaching liability because the purpose after all of 1983 is to provide relief for the infliction of constitutional harm by state officials, we should at least go as far as the Common Law goes and on that basis I would urge that negligence be allowed.

Thank you.

Warren E. Burger:

Thank you.

You have about four minutes Mr. Svetcov.

Sanford Svetcov:

Thank you Your Honor.

The Ninth Circuit stated the Section, referring to Section 1983 place, places no narrow limitation on the nature or quality of the conduct which makes it actionable, but concerns itself entirely with the consequences of that conduct.

Warren E. Burger:

Where are you reading from?

Sanford Svetcov:

I am reading from the appendix to the petition for certiorari at page 7, and then on page 8 it goes on to say the allegations that state officers negligently deprived him of those rights referring to the First Amendment Rights, states a 1083 cause of action.

We filed our writ from that ruling.

Now, the Ninth Circuit construed the third cause of action to state a clause of action in negligence.

If this Court or majority of this Court reads it as stating some other cause of action as habitual misreading of statute and regulations reads to us deliberate in difference and he does not need a negligence cause of action and the Ninth Circuit in so far as it has held that negligence states the cause of action was misreading what this complaint was all about.

But the Court, I think should go further and unequivocally hold that if it does indeed allege negligence because he must mean negligence here, he said deliberate in difference in his first two causes of action, then we decide that under no circumstances does negligence state a cause of action.

And I think that this Court’s decisions, particularly in Estelle v. Gamble, Paul v. Davis, Rizzo v. Goode, support the proposition that negligence does not state a cause of action under 1983.

Sanford Svetcov:

The pattern of error by subordinate officials has to be something more than negligence.

It has got to be egregious wide spread and continuing as to permit an inference of deliberating difference and we have been deliberating difference to mean some sort of informative intentional conduct or a refusal to act upon a clear duty.

Now, I want to clear up the point that whether there are 13 items or 25 items that Justice Powell raised.

The complaint lists 13 items have mailed Justice Powell.

It is true that some of those were apparently have a multiple addressees and I think one of the items was reproduced eight times and put in eight different envelops and sent and when it was turned in there were a package of eight alleged, but that is one item of eight, so if you add up the multiples it comes up to 25 letters in respondent’s departments, but we accept his listing of 13 items.

There were 13 letters as we see it, some of them had multiple copies, to clear that up.

Now, I have a fairness question that I have difficulty in dealing with.

The counsel seems say that Mr. Procunier, the Director of the California Department of Corrections should have known about the inmates’ First Amendment Right of free expression back in 1971 and 72 because he was in Court, the Lower Courts, District Court and Circuit Court litigating the question but Mr. Procunier was here on 1974 and this Court did not tell him anything about the inmates’ right of free expression and I have a — there is a basic unfairness and telling him now you should have known it.

In 1972, when he was not told about it in 1974, and I had submitted on that.

Thank you Your Honor.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.