Younger v. Gilmore

PETITIONER:Evelle J. Younger, et al.
RESPONDENT:Robert O. Gilmore, Jr., et al.
LOCATION:Folsom Prison

DOCKET NO.: 70-9
DECIDED BY: Burger Court (1971-1972)
LOWER COURT:

CITATION: 404 US 15 (1971)
ARGUED: Oct 14, 1971
DECIDED: Nov 08, 1971

ADVOCATES:
George R. Nock – for appellants
John E. Wahl – for appellees

Facts of the case

Several indigent California state prisoners filed complaints attacking the constitutionality of the regulations which forbade California prisons from having more than twelve law books in a prison library. On January 10, 1967, the district court consolidated the multiple cases because they contained common questions of law and fact.

The California prisoners moved for the convening of a three-judge district court, but their motion was denied. On appeal the United States Court of Appeals for the Ninth Circuit reversed the lower court’s order denying a three-judge panel. On May 28, 1970, a three-judge district court granted the plaintiffs relief from the regulation limiting the number of law books in prison libraries. The defendants appealed the district court’s decision.

Question

Does a state have an affirmative constitutional duty to provide prison inmates with law libraries or professional legal assistance?

Warren E. Burger:

We will hear arguments next in number 9, Younger against Gilmore.

Mr. Nock, you may proceed.

George R. Nock:

Mr. Chief Justice and may it please the Court.

Five years ago, last month the Director of Corrections in California adopted a new regulation regarding prison law library.

It was in response to a certain problem he faced.

In two of the three institutions under his control there were few or any law books at all.

In two of them, San Clinton and Folsom there had over the years accumulated a rather rugged collection of law books mostly case reports and mostly more than 10 years old.

Of course such obsolete law books were worst than to assist.

They were potentially dangerous because misleading.

Nonetheless, despite the poor condition of the law libraries, inmates and other institutions have a misimpression that they were first class library and with that, the director has request to transfers to San Clinton and Folsom in order to utilize the library facilities.

The new rules attempted to solve those problems by standardizing the libraries at all 14 institutions.

This was to be done by providing a carefully selective list of what they call basic codes and references.

Are this is all always in venture to start on — since this case arose?

George R. Nock:

Well, the adoption of the regulation Your Honor came prior to the filing of this complaint.

The regulation was adopted on September 19, 1966 and complaint is filed in response to the adoption of regulation —

Until then I misunderstood you Mr. Nock I thought you said within the last five months.

George R. Nock:

Oh! I beg your pardon yes I did, that was certainly here five years.

Well whichever it is, it was the year.

Now, I have it clear five years.

George R. Nock:

Thank you, Your Honor.

This carefully selected list of law books contained the various Codes of the State of California designing team in census, the State and Federal Constitution, a Law Dictionary, Rules of this Court, the California Courts, and Court of Appeals of the Ninth Circuit, inadvertently omitted and regrettably so all the rules by Federal District Courts in California.

And also in the list where in The Standard Work on California Criminal procedure, Mr. Watkins(ph) worked on that title and the subscription to the weekly law digest, the California publication which summarizes the most recent decisions of this Court and the California Courts and all areas including criminal law.

The response were totaling this complaint on October 27, 1966 by the plaintiffs, a group of inmates.

They challenged the constitutionality of the regulation because it provided, as necessary part of the standardization plan that law books, existing law books at the two institutions, San Clinton and Folsom would have to be removed.

A counsel was ultimately appointed, the very able gentlemen on my right.

Thereafter, I think at all times through counsel, the inmates filed an amended complaint alleging new causes of action not related to the infinite deal and the filing motion to a three-judge court.

This motion was denied but then it was able to persuade the single judge to certify the question as of propriety of the three-judge court to the Court of Appeals for the Ninth Circuit and an interlocutory appeal along that issue was taken.

The Court of Appeals held it was the case of a three-judge court and it reversed the order of the District Court.

We disagreed and filed a certiorari petition.

Now, during this premise as early as they could it was not a three-judge court case.

George R. Nock:

Our position is requested and filed and certiorari was unanimously denied.

The case went back to the District Court where a three-judge court was convened.

The Court met on August 6, 1969, requested that the party isolate the issue suitable for a three-judge court determination and certify them clearly and aid the court as much as possible in the existing issues to those of law.

We complied by filing lengthy speculation and several statement of issues which we listed five issues, and the first two of which we consider relevant to the appeal and that was the constitutionality under first the Due Process Clause and second to Equal Protection Clause of this regulation.

We stipulated and suggested relief which included, should the Court find the regulation unconstitutional or the declaration has been constitutionality and then the injunction against this enforcement.

Harry A. Blackmun:

Mr. Nock, let me ask you one thing in the Regulations 330 or 41, they shall be established an institution of that of the said basic code in references which will consists of and be limited to namely the law book not included in that list in or the United States reports.

Does this mean that if with (Inaudible) they said of United States reports with the State of California to use in San Clinton Prison that would not be accepted?

George R. Nock:

Under the present regulations, they would not be accepted at San Clinton Prison, Your Honor.

They would be accepted by the State Library of California to add to its prisoner collection which is circulated among the various inmates upon request, subject to the availability, if the request is done.

As the regulation show some of the State Library Collections are missing, but they do contain now all the case reports that any California prisoner could properly desire.

Harry A. Blackmun:

Well, what is the policy behind the regulation which prohibits the existence of all or part of the U.S. Reports which I suppose are the final authority on constitutional act?

George R. Nock:

Standardization, Your Honor, to give inmates in all 14 institutions the same access to locally based law books.

If Your Honor, they were to be 14 sets for the State of California to use in its penal system there will be no problem in distributing the 14 sets to these various 14 institutions.

Harry A. Blackmun:

Except that the regulation reminiscent to the 11 items mentioned that does not include the said U.S. Reports?

George R. Nock:

Correct, Your Honor.

The regulation did not contemplate anyone decreasing the extensive collection of law books to the state.

The regulation is capable of instant revision as a Director of Corrections at his pleasure, at least in present form of course it does buy just that, but it would be revised under appropriate circumstances to affect the aims of standardization.

Byron R. White:

What if they — an inmate purchases one volume of United States Reports that he wants, can he buy one?

Let us assume he has the money and he orders it from the government printing office?

George R. Nock:

Yes he may.

He may —

Byron R. White:

So anybody who has the money can have an fairly adequate law library available to him alone?

George R. Nock:

It depends on your definition, Your Honor, of adequacy.

The regulation stipulates that personal possession of law books or any books are limited to space available.

In San Clinton for example —

Byron R. White:

The place is available, but if he could buy a textbook on the separation of petitions for habeas corpus which would not be available neither at prison or the State law library let us say?

George R. Nock:

That is correct, Your Honor.

Byron R. White:

So he could have it himself?

George R. Nock:

Yes, indeed.

Byron R. White:

But he could loan it to anybody?

George R. Nock:

That is not clear in the present regulation.

Lending would be discouraged.

I am not prepared to say it would be impossible.

The regulations are fluctuating that I do not have all of them on hand.

Byron R. White:

Is there any regulation about hard covers (Inaudible)?

George R. Nock:

Only institutional regulation.

San Clinton allows despite of its space limitation, ten hard cover volumes of whatever description legal or otherwise plus two orange boxes full of unbound material.

That is for each prison?

George R. Nock:

For each prison.

It will vary from institution to institution depending on state.

The District Court held a second hearing, oral argument.

At no time had the Court given any indication that intended to or they are even considered granting relief farther than that asked for in the complaints or based upon stipulation, but it did.

It held that the list of law books is unconstitutional and at the state had an obligation to turn it either extensive and it seems very extensive collection of law books or alternatively to provide lawyers or law students to assist the inmates or to provide some unspecified and perhaps not even conceived of other method of assisting inmates in preparation of their petitions and complaints.

Upon that order, in enjoining the enforcement of the regulation and mandating new regulations we have appealed and we contend that this Court has Jurisdiction to hear this appeal, that the regulations in question do not bar access to the Courts during that, do not deny them equal protection of the law and that the mandatory injunction of the District Court violate the Eleventh Amendment.

The issue of jurisdiction is one of which the parties did not raise.

We are in agreement that this Court has jurisdiction.

The issue has been raised by the Court itself in its order requesting special memorandum on issue of the three-judge District Court’s Jurisdiction, that of course is coming shortly after the filing of the jurisdictional statement and in the postponement rather than notation of jurisdiction in February this year.

Thurgood Marshall:

Mr. Nock, assuming a man of reasonably charge is one who filed the petition during 235.

What book in that list is you say is what happened?

George R. Nock:

Oh! I am sorry.

Under the 2254 the California Weekly Digest will be of some value depending on how set back it went.

We have consulted on California Criminal Procedure with a greater value but —

Thurgood Marshall:

California Criminal Procedure, was that the one of 2255?

George R. Nock:

2255 is that the Federal?

Thurgood Marshall:

No, 54.

George R. Nock:

Federal Court.

Thurgood Marshall:

I mean, 54?

George R. Nock:

54, the Federal habeas corpus because the criminal procedure contains the applicable constitutional out of efficiency of this Court and the other Federal Courts defining constitutional act.

They were helping in determining what his rights are so that he can set up the fact which he thinks his right was denied.

That would be the function of witness.

George R. Nock:

If he wanted to know which court to file in, if he wanted to know whom to name his respondent, he is going now to rely on word of mouth.

I have never heard of an inmate making a serious error in either of those situations.

But if he wants to get to perform the necessary procedural requisite to getting efficient file all he has to do is fill-out the 11-page form provided by the prisons free of charge to all inmates approved by the Local District Courts.

Thurgood Marshall:

And this California thing will help them in doing that?

George R. Nock:

He will help him in finding substantive rights.

Thurgood Marshall:

Which will amend?

George R. Nock:

Yes indeed.

Potter Stewart:

What is the date of publication of Watkins?

George R. Nock:

The original book goes back to, I think 1963.

It is supplemented annually or biannually by pocket parts or pamphlet supplement or both.

Potter Stewart:

It is California criminal procedure that is —

George R. Nock:

Yes.

Potter Stewart:

The title does indicates that is Federal?

George R. Nock:

Well I urge of perusal and big perusal of it which show that all the significant cases with this Court in the Ninth Circuit with regards to substitute Constitutional rights if prisoners are there.

Our position on jurisdiction is simple one of reach to the color that the issue has been determined by a final judgment of the Court of Appeals.

We cannot take too much though.

I argued that it was not a three-judge court case.

We lost the argument before this Court.

The judgment became final and now I can only assert that it was the determinably inequitable.

That this might be the Court to all that there is no jurisdiction and send the matter back for a further appeal, other case is nearly five years old.

If we are still litigating in proper composition of the tribunal to determine it then the law has failed and we think that any discretion imposing it in this Court should be exercised in favor of assuming jurisdiction.

And that by viewing the case the judgment of the Court of Appeals is res judicata.

There is no discretion and jurisdiction is clear and must be accepted.

With regard to the question of access to the Courts we do not believe that law books are necessary for access to the Courts.

It is a cliché to say, but it would be equally true that all an inmate has to do is set-out in reasonably intelligible form the statement is after the same.

The statement might be very long to charge with case of complaint.

It might be short if he is claiming, he pleaded guilty because he was beaten or because they have found something that he did not get, but all he has to do is set them out.

The Court will apply the law, arguments, citations, and authority.

After this it may consider not only necessary, but that is even improper.

In habeas corpus petition themselves, notwithstanding that lawyers will attend the memorandum points and authorities in most cases.

George R. Nock:

Inmates are not well equipped to use law books, at least they are not relative to use the United States Reports, the California Reports, the Federal Reports, U.S. Law Week and the other publications alluded to by the District Court as not being present.

It is questionable what value those books would be to an inmate in helping him to file a Section 2254 petition as Mr. Justice Marshall asked because they do not give in any reasonably acceptable and understandable point of rules in jurisdiction and then you — that an inmate might have a little trouble in getting.

He gets those from the forms, from Mr. Watkins book and from the Weekly Law Digest.

The —

William J. Brennan, Jr.:

(Inaudible) that the state position is that there is no duty whatever constitutionally required despite any law book?

George R. Nock:

That is our position.

It is not —

William J. Brennan, Jr.:

And that therefore whatever you provide is a matter of the state?

George R. Nock:

Constitutionally yes.

I believe that most of the States provide no law books at all and that this violates —

William J. Brennan, Jr.:

But the issue here, is that issue here that we have?

George R. Nock:

That is one issue because the Court enjoined the enforcement of the regulation requiring removal of law books into institution to get an outright reversal of that order.

We have to contend that there is no constitutional right at all.

We would be happy of course finding that if any constitutional (Inaudible) that is made by this writ, and I might add there are omissions in the list which presumably would be rectified in the event of deferment.

Minor omissions such as the absence of the United States Code, the judicial code I should say, 28 U.S.C.

District Court Rule?

George R. Nock:

District Court Rules certainly should be in there.

That was a serious inadvertent there for three volumes, two of them paperback, one hardcover would provide we think all consumable omissions, namely the volume containing 28 U.S.C., Federal Appellate Procedure, Federal Civil Procedure, the volume containing the rules for all California and California Federal Courts and Mr. Selbrooks (ph) book on habeas corpus.

But with those possible deficiencies we submit that the list adequately provides what the inmates need.

Equal protection has overtly played in here as a sort of neglect.

The District Court relied on it, but the basic course of its position was that the restricted nature of the law book was denied inmates’ access to the Courts.

We think that it is not declared totally speak equal protection in this context because if inmate or by their indigency disadvantaged so greatly that they are denied in fact of this access of the Court and of course equal protection would be denied in any other circumstances because the mere fact that they are not as well of as a rich man does not add much to the discussion that equal protection, including a major issue.

However, we give it some attention, more attention that might hear in our reply brief.

Finally, the Eleventh Amendment issue was of considerable importance.

That amendment is not been much discussed by this Court in recent years, but it has been given deal of attention in the Lower Courts and many Lower Courts have exceeded to the temptation to order the States to appropriate money.

Judge Virlyn Moore in his opinion in Westberry versus Fischer 309 F. Supp. 12 has effectively answered this contention.

At this time I would like to with the Court’s permission, reserve any time remaining after lunch for rebuttal.

Warren E. Burger:

Very well.

Mr. Wahl.

John Eshleman Wahl:

Mr. Chief Justice and may it please the Court.

John Eshleman Wahl:

This case is about tools which are necessary for access to the Courts.

In the English speaking world the common law entries for history of development of tools which are necessary for access to Courts has been a history wherein the executive has resisted the extension and the granting of these tools, starting with the great struggle to achieve the great writ of freedom, the writ of habeas corpus highlighted by the English statute in 1695 wherein treason defendants were allowed to have counsel at the trials.

Before 1695, neither treason nor felony defendants of course could have counsel.

Then highlighted by our own Sixth Amendment because at that time in England even felony defendants could not have counsel, they did not get the right to counsel until 1836.

Finally highlighted by our great line, your great line of equal protection cases rendering rights to transcripts and counsel beginning perhaps in 1956 with Griffin versus Illinois through Andrews versus California, so on and so forth.

As I have mentioned the executive has historically resisted the making available tools for access to the Courts and we believe that executive branch of the California government again does so here and does so strongly and does so quite ably through my brother Nock.

We concur with the Attorney General of California that this is a proper case to be heard by a three-judge court and the three-judge court was properly convened.

We think the strong interest of the California government even resisting the order of granting relief which came from that three-judge court shows that this is the kind of case that Congress had in mind in passing Section 2281 of Title 28.

This regulation which was promulgated pursuant to authority granted by the California Penal Code, by the California Director of Corrections, involves the legislative policy of California.

Section 5058 of the California Penal Code allows the Director of Corrections to provide regulations, to establish regulations for the government of the California Prisons and the change from at his pleasure and he has done so here as counsel pointed out.

In September of 1966, five years ago, he promulgated a regulation limiting law books in prison libraries to 12 named law books with which you are familiar from counsel’s argument.

He also incidentally in the same transmittal letter in which he promulgated that regulation, promulgated an additional regulation ordering all law books in inmates’ personal possession removed and destroyed.

Since that time the California legislature has enacted California Penal Code, Section 2600 which allows inmates to receive and own law books in their own cells.

But the restriction and this is the whole aspect of this regulation which is really onerous, the restriction of prison libraries to 12 named law books we contend violates the rights of indigent inmates and only indigent inmates to access to the Courts, it is an integral aspect of due process of law and their rights to equal protection of the laws.

Harry A. Blackmun:

Mr. Wahl, could I go back to the jurisdictional point and ask one question?

Do you have any comment about the Hatfield case which was not cited in your brief?

John Eshleman Wahl:

Not that it was not cited in my brief Mr. Justice Blackmun.

The Hatfield case I think supports our position and is distinguishable from this case because Hatfield had to do with the regulations involved in one Oregon prison.

This regulation applies statewide to all California prisons and penal institutions.

Harry A. Blackmun:

And Oregon had only one penitentiary?

John Eshleman Wahl:

Well, no sir, but I believe the regulation attack there was a time space and method regulation in one particular Oregon prison.

It was attacked by the inmate of that person.

Harry A. Blackmun:

In other words, you would distinguish Hatfield rather than take a position that was erroneously decided?

John Eshleman Wahl:

I would — I could argue either way Mr. Justice Blackmun.

Harry A. Blackmun:

As long as you get away from it?

John Eshleman Wahl:

I do not think the case is a good case.

I think the dictum in the case concerning, first stating that prison authorities have no obligation to provide prisoners with opportunities to search for legal loopholes is a feeling type of statement, but I do not think that it reaches the questions which we reach here which are access to the Courts in due process of law access to the Courts and equal protection of the laws with regard to the indigent prisoners.

William J. Brennan, Jr.:

Well you mentioned, it used to be enacted in California Statute that inmates may have law books in their cells?

John Eshleman Wahl:

Yes, Your Honor, Justice Brennan.

The Section 2600 was enacted, I believe in 1969, am I not correct counsel, 68.

John Eshleman Wahl:

After this case, after this action was filed and after we had obtained a temporary restraining order which although it is almost moot at this point remains in effect by stipulation in order prohibiting California prison officials from removing books from inmate’s cells.

William J. Brennan, Jr.:

Well, what citation is that?

John Eshleman Wahl:

The —

William J. Brennan, Jr.:

I suppose it must be based on cases of sometime?

John Eshleman Wahl:

Yes, Your Honor.

The inmates may purchase law books and legal opinions, anything that is allowed to pass through the United States Post Office with the exemption of perhaps matter which might be considered obscene, inflammatory, this is — perhaps it worry out in that regard, but subject only to reasonable limitations concerning space.

William J. Brennan, Jr.:

Well, do you find then in strength to your position the equal protection position in that fact?

John Eshleman Wahl:

Yes, Your Honor, I do.

The best tool you can have, if you want to go in the Court is a lawyer, it is the best way you can get.

The second best tool if you cannot afford a lawyer is access to the law, access to the opinions, to the substance, to the procedural writing on the law.

I think the inmate that is very wealthy can retain counsel.

The inmate that has means, but not quite as much means can buy law books.

The inmate that has nothing can buy nothing.

William J. Brennan, Jr.:

So he may supplement.

He may purchase books as I understand it outside the list of 12 that are available in the prison library?

John Eshleman Wahl:

Yes, he may.

William J. Brennan, Jr.:

Whereas you suggest the indigent canno6t?

John Eshleman Wahl:

The indigent may not or cannot.

Warren E. Burger:

Mr. Wahl, in this building as you know we have an expanded library with many thousands of volumes and the Department of Justice has a comparable library of many thousands of books.

On a constitutional basis, how can you stop short of giving every prison the same kind of tools that we have here to decide the case and that the Department of Justice and the State of California’s counterpart has carry out this duty?

John Eshleman Wahl:

Mr. Chief Justice, I think this is the most difficult question, but it is the question which we squarely need.

I think that you do no have to give inmates obviously Benedict on admiralty.

This is extreme.

Obviously they do not need this.

Warren E. Burger:

Let us narrow it down.

Should they have everything that we have and the Department of Justice has and the Attorney General of California has on matters relating to criminal law, habeas corpus, and post-conviction?

John Eshleman Wahl:

No, Your Honor.

They should not.

They do not need this.

They should have what they need for meaningful access to the Courts on the personal ground.

Warren E. Burger:

How many volumes is that?

John Eshleman Wahl:

I would say —

Warren E. Burger:

And which volumes?

I will not ask you to list them, but who is going to identify those volumes?

John Eshleman Wahl:

In the argument in the Court below Judge Zercoli (ph) asked Mr. Nock and myself if we could coordinate on establishing a list of law books for California prisons.

Warren E. Burger:

Did Judge Zercoli have some idea that you could speak for all the inmates of the prisoners in California?

John Eshleman Wahl:

I think he only asked the question, Your Honor and I said that I would consider this one of the most weighty responsibilities that anybody could have, but I would attempt it because it would be better than the present situation.

I think that counsel supports our position that additional books are needed in his brief.

Warren E. Burger:

As a matter of policy, but is not as a matter of constitution, I think, a very narrow limitation on that?

John Eshleman Wahl:

Well, he does not say that the –-

Warren E. Burger:

He did in oral argument.

In oral argument, this morning he said none by the constitution?

As a matter of policy he was willing to say that it is desirable to have some?

John Eshleman Wahl:

Yes, I believe though that when he admits in his opening brief on page 22, the three additional law books in the prison libraries giving knowledge of venue, jurisdiction, proper parties, respondent and exhaustion of remedies and perhaps hopefully does not say this even proper remedies.

For instance, whether it should be a petition for writ of coram nobis or a petition for writ of habeas corpus which in California are brought in different Courts.

Petition for habeas corpus is brought in the Courts which has jurisdiction over the county in which the prisoner is incarcerated.

Petition of writ of coram nobis is brought in the Court where the petitioner was convicted.

He admits in his brief that three more books would give the use procedural or this procedural law make it available to the prisoners.

Thurgood Marshall:

I might say that multiple pages printed, I think it is document which he just fill in the blanks?

John Eshleman Wahl:

Well, Your Honor that is no substitute for law books.

If it is —

Thurgood Marshall:

In favor of substantive law I wonder what value do you put on it?

John Eshleman Wahl:

I put very little value.

I think that counsel’s position is or rather the state’s position is that this — that all an inmate needs to do is allege facts on a blank, on his blank forms and hand them in so to speak and the Courts will do everything that is necessary to ensure that the inmate gets a fair hearing.

Well, this is impossible by the number of petitions that are filed.

The inmate who files a post conviction petition has a tremendous burden because he has already had a trial.

Perhaps he has had an appeal, but as you know from the brief of amicus, California does not at this point inform inmates or who have been convicted that they have a right to an appeal and a right to counsel on appeal immediately after their appeal.

So many times the inmates’ first shot in essence an substitute for an appeal is a petition for writ of coram nobis or petition for habeas corpus.

Byron R. White:

Could I ask you about the (Inaudible) orders upon — at what stage in final relief proceeding an attorney (Inaudible) California Court?

John Eshleman Wahl:

In general, Your Honor and I cannot speak for all proceedings, I have been appointed in one proceeding myself and that was in a petition for writ of coram nobis.

John Eshleman Wahl:

After the inmate had filed his petition with the Court and the Court had decided that this petition was worthy of appointment of counsel —

Byron R. White:

So counsel is not automatically defined in the collateral proceedings immediately from the filing of the petition?

John Eshleman Wahl:

No he is not, he is not.

The inmate has —

Byron R. White:

The (Voice Overlap) court decides that there is substance to it?

John Eshleman Wahl:

Only when the court decides there is some substance to it.

Byron R. White:

Then counsel is appointed?

John Eshleman Wahl:

Yes, Your Honor.

Byron R. White:

Do you think you can adjust the proceeding in the Lower Court?

John Eshleman Wahl:

Right.

Byron R. White:

And then on appeal?

John Eshleman Wahl:

And on Appeal.

William J. Brennan, Jr.:

Does that uniformly true in all the counties of California or only some?

John Eshleman Wahl:

I believe it is true throughout the state, Your Honor.

Byron R. White:

Is that under a statute or a court rule or what?

John Eshleman Wahl:

A counsel may be appointed pursuant to two statutes that are part of the California Penal Code for trial court or personal proceedings and for appellant proceedings.

There is one statute that covers first instance appointment and one statute that covers an appellant point.

Byron R. White:

Do you think that with some effort it might take a year and so you and someone else could make up a handbook on habeas corpus with the forms and some fundamental ground rules that would be adequate in your terms to guide an indigent prisoner?

John Eshleman Wahl:

I am sure that somebody could do this, but it would have to be more than a handbook.

It would have to perhaps a book with a supplement and the supplement —

Byron R. White:

That is what I mean, a loose (inaudible) would be kept for today?

John Eshleman Wahl:

Yes.

Byron R. White:

Fundamental rules book?

John Eshleman Wahl:

Watkins Criminal Procedure was cited by counsel earlier and I was fairly certain, but I checked during the noon hour and it is supplemented every two years.

The latest supplement in your library upstairs is dated, Mr. Watkins promulgating letters dated January 15, 1970.

This is insufficient.

I think that it would be possible Justice White to write, publish the kind of book you are talking about and I think this is embraced within the terms of the three-judge court’s order.

The three-judge court did not order an extensive argumentation of prison law libraries.

It left the whole matter open.

It merely ordered the state to come up with new regulations prior to September 1.

Byron R. White:

(Inaudible) what does in your position or the findings of the three-judge court, anything that show that any of the named plaintiffs have the disadvantage to the trial with respect to the regulations that they are now talking about, namely they (Inaudible) had wanted to file or were in the concept of filing and that they have been denied the books that they needed.

Is there any showing of any specific (Inaudible)?

John Eshleman Wahl:

I believe that there was in the original complaint not into this, in the original complaint.

So there were four original complaints.

Three filed from San Clinton and one filed from —

Byron R. White:

It is a class action?

John Eshleman Wahl:

It is not approved class action.

We have abandoned it –-

Byron R. White:

We are talking about the main parties?

John Eshleman Wahl:

Yes, Your Honor.

There were —

Byron R. White:

(Inaudible) these regulations on these people aside from the restrictions which apparently points out the case on the regulation of loaning of equal material and one person to another or is there any (Inaudible) to help us?

John Eshleman Wahl:

Mr. Justice White I think you are referring to the regulations prohibiting inmates for owning not loaning, owning personally own law books.

Byron R. White:

Right and I would like that.

John Eshleman Wahl:

Yes that is what — California still prohibits inmates from loaning material back and forth.

Byron R. White:

Is that an issue in this case?

John Eshleman Wahl:

It was an issue in the Lower Court.

We did not file a cross-appeal because Judge —

Byron R. White:

So that is not an issue before us?

John Eshleman Wahl:

Well, only insofar as its part of the basic sub-stratum of the whole opinion.

This is not a case just having to do with law books and this is access to the Court’s over the whole gambit of facilities provided by the state.

Byron R. White:

But I do not see anything in front of the District Court showing at least particular plaintiffs together (Inaudible)?

John Eshleman Wahl:

I believe, Your Honor and the reason I say I believe is because I have not read the original complaint as opposed to the amended complaint for a long time, but I believe that they alleged specifically that the denial of law books infringed their ability to file post conviction petitions and actions under the Civil Rights Act of 1871.

Certainly in the amended complaint we did so allege.

Byron R. White:

Well, after all you do not need to teach your plaintiff, it must be learned lawyer?

John Eshleman Wahl:

Robert —

Byron R. White:

(Inaudible)

John Eshleman Wahl:

Robert O. Gilmore Jr. is not Your Honor.

He is — I think he is a three or four time loser from —

Byron R. White:

(Inaudible), right?

John Eshleman Wahl:

He may have attained a good knowledge of law over the years, but I think even a lawyer, if I were incarcerated without the use of law books I would hate to rely on my memory because my memory would stop, the one thing as of the moment of my incarceration.

I would not know any continuous case.

The appellees say they have the money to provide the books, but first of all we have not decided what books are necessary.

If for instance we go fairly far and if Mr. Nock and I were to have this task, if we were to go fairly far and say inmates should have all California Reports, all California Appellate Reports, all United States Reports and all Federal Supplement and Federal Second Reports plus the text that had already been allowed plus the rules of the District Court on so-called on Federal habeas corpus.

Warren E. Burger:

How many sets they need to prisons?

John Eshleman Wahl:

One set perhaps in each prison.

William J. Brennan, Jr.:

Mr. Wahl, if you prevail I take it and we have to lay down some kind of standard that we have let us say constitutional right (Inaudible) could, what do you suggest have you say earlier something about whatever maybe adequate or the need, what does that mean?

John Eshleman Wahl:

Your Honor, I almost have to go back to the kind of thinking that that was followed by this Court before you overruled Bates versus Brady.

In each case where somebody comes to the Court and says I cannot file a petition because there are no law books necessary.

I do not think you run into that probably because I think that if you order that of if you affirm this order I do not think there will be extreme difficulty in working out some kind of a library as part of that.

William J. Brennan, Jr.:

Does this order suggest that, I thought the order did nothing more than say this regulations are no good.

Does it provide any standard to guide the commission of correction if the new regulation should (Inaudible)?

John Eshleman Wahl:

No, Your Honor it is not specific standard, it is not by saying these reports or those reports or these Courts.

Byron R. White:

Is the existing list adequate?

John Eshleman Wahl:

It said that the existing list was inadequate and that some regulation should be promulgated which will provide the first instance petitioner with enough access through the law to allow him meaningful access to the Courts on the first time he files his petition.

Byron R. White:

And none of these things on the list would satisfy because they are having that position?

The State Law Library —

John Eshleman Wahl:

Your Honor, the way the State law Library works —

Byron R. White:

With the access?

John Eshleman Wahl:

No, no the law — the state law library is complete.

It is just not feasible.

Each inmate is allowed to send in a postcard asking for five volumes once a week and usually gets back another post card saying they are all out and they are not circulation.

But I do not want to represent that as a fact usually, but quite often this happens.

Thurgood Marshall:

Mr. Wahl, assuming that this Court should jot down a list of books which the prisons in California has to have, Federal Reports, US Reports, (Inaudible).

And once we do that whether we do it with the latest decisions, you have to (Inaudible) says that in Federal Supplement they do not have the process towards them.

John Eshleman Wahl:

Well, Your Honor I do not know the answer to that but I think that constitution —

Thurgood Marshall:

Well you do not want us to supervise the library to the prison, do you?

John Eshleman Wahl:

No, I do not want.

Thurgood Marshall:

What compromise we have between that and doing nothing to offer?

John Eshleman Wahl:

I do not think we reach that question because I think that the only question here is whether this order which requires, which asks for new regulations should stand or fall or be modified.

Warren E. Burger:

Do you not think the State of California was entitled to the benefit of the wisdom of these three judges who have this idea on what it would — what would satisfy them?

John Eshleman Wahl:

Yes, Your Honor I do.

Warren E. Burger:

Did they give any indication of what they have in mind?

John Eshleman Wahl:

They basically ordered the state to come up with new regulation, Your Honor.

Warren E. Burger:

Yeah, but what book, what book?

If they do not know how should that director of prisons know?

John Eshleman Wahl:

Well, Your Honor they did not require books.

Warren E. Burger:

Well, what did they require?

John Eshleman Wahl:

They pointed out three examples and the judges said of course the alternatives are legend.

Justice White suggested one which has never been discussed, below or between counsel and myself.

Byron R. White:

Does any county of the state has legal aid, the body or public defender or something like that who is available at all to a prisoner who wants to file a petition?

John Eshleman Wahl:

There is legislation.

There is perspective legislation which will establish a state wide post conviction or perhaps not all post convictions, but appellant defense core.

There are public defenders now in California, but in a number of counties, but this public defenders only represent on appeal if they decide the appeal is worthwhile.

Byron R. White:

There is no some public defender who is present to extend to answering any call for help if a prisoner wants to file a petition?

John Eshleman Wahl:

Not to my knowledge.

The America —

William J. Brennan, Jr.:

Mr. Wahl, If there were something like that, you probably would not be here asking for books in the prison library, would you?

John Eshleman Wahl:

That is correct.

William J. Brennan, Jr.:

If there were a provision that any inmate will have the services of counsel?

John Eshleman Wahl:

That is correct.

I think that it would be cheaper of course to provide law books in prison libraries than to establish a state wide system of appellate defendants, but of course varied considerations are not the important thing.

Byron R. White:

When you get through with the body of petition or maybe these people will have lawyers?

Warren E. Burger:

Some places have experimented with placing a legal aid lawyer right in the institution.

Has California done any of that other than with the student program?

John Eshleman Wahl:

Not to my knowledge, Your Honor.

Warren E. Burger:

They have had the student programs, have they not?

John Eshleman Wahl:

They have had some attempts to take students out to the prisons?

Byron R. White:

But you say that proposed legislation looks forward to this area?

John Eshleman Wahl:

This is my understanding and I believe it has not passed even one house here.

John Eshleman Wahl:

I believe it is pending in the senate.

I am not sure.

Your Honor when you — Your Honors, when you overruled Bates versus Brady in 1963 in deciding Gideon, a great number of the kinds of problems which we are touching on here were urged upon you by the State of Florida that if you do this you will encourage litigation because new tools, in that case counsel would be available, be made available to many, many defendants and inmates.

That there be an enormous burden on the taxpayers and that the matter would create myriad and complex new league of questions.

William J. Brennan, Jr.:

You do not think it had?

John Eshleman Wahl:

I think that the effect of it has been practical —

William J. Brennan, Jr.:

From advantage point I would say that is longer —

John Eshleman Wahl:

Well, the practical of that in this case I think would be therapeutic and educational.

It is much better to let inmates try to get out of prison using law books than in more socially unacceptable ways.

The psychological effect on a poor man who cannot have more than the 12 books which the executive says he can have them when somebody else in the next trial has 14 lawyers in a New York firm working on his case is rather profound.

Inmates know what laymen generally know, effective access to the courts has to include knowledge of the law through some kind of tool.

Otherwise there is no need for the bar.

There will just be a need for the bench.

If you put the duty on the judge of protecting the rights of the post conviction petitioners, you make the judge an advocate and I think that the inmate has to have knowledge of the law to allege facts, I will not touch on that more than briefly.

He does not know what facts to allege unless he has knowledge of the law.

He does not know how to allege the facts and which facts are not relevant or material at all.

Here you have a situation where California makes habeas corpus and coram nobis available, but denies their effective availability to propers and this would seem to violate all your line of equal protection cases.

Thank you, very much.

Potter Stewart:

Mr. Wahl, I just based on this, some discussion on the briefs of the various — of the forms that are provided for the use of prisoners wanting to make up applications for habeas corpus and other collateral relief.

I do not find any of such forms, ample forms in the appendix anywhere.

Are there, did I miss it?

John Eshleman Wahl:

I do not believe we put them in Justice Stewart in the appendix sir, but six pages of the note 8-1/2 x 11-1/2 paper asking various questions.

The question about the facts having to do with post-conviction relief say briefly allege the facts which you question like this, briefly allege the facts which you think entitles you to the relief.

Potter Stewart:

Are those forms in the original record?

John Eshleman Wahl:

I am sure they are in the original record.

Potter Stewart:

Is it here?

John Eshleman Wahl:

Yes.

Potter Stewart:

And this, are these provided by both the state and the federal Courts?

John Eshleman Wahl:

They are.

Potter Stewart:

In California, all of the state and Federal Courts, that is appropriate ones where such briefs can be filed?

John Eshleman Wahl:

Yes and they are similar in nature.

Potter Stewart:

And they are in the record you think?

John Eshleman Wahl:

They are in the record, yes sir.

Potter Stewart:

Thank you.

Warren E. Burger:

Thank you Mr. Wahl.

Mr. Nock you have ten minutes left.

George R. Nock:

Thank you, Your honor.

On the point of the forms raised by Mr. Justice Stewart, they are indeed in original record and furthermore we filed an amicus brief, in the case of Johnson versus Avery, 393 U.S. 483 couple of terms ago in connection with regards to the Court’s ten sample copies of each of the three forms available.

(Inaudible)

George R. Nock:

Beg your pardon?

William J. Brennan, Jr.:

In connection with, what case were they filed?

George R. Nock:

Johnson versus Avery.

William J. Brennan, Jr.:

(Inaudible)

George R. Nock:

Mr. Justice Blackmun asked Mr. Wahl about the Hatfield case.

I would only make the observation that a lawyer has no personal knowledge as to whether Oregon at that time had only one penitentiary or more than one.

I got the distinction impression from reading the opinion that it had more than one and I felt that the opinion is written on the premise, perhaps the matter should be investigated before the case can be held to stand to the authorities that or to stand for the proposition of three-judge Court is not required.

Byron R. White:

Well there is no question this is a state wide application?

George R. Nock:

No question at all.

Byron R. White:

And it is the order of the (Inaudible) administrator authorized by statute to propound the regulation?

George R. Nock:

Indeed.

Byron R. White:

Now are there plenty of cases in this Court which denies the three-judge court in particular?

George R. Nock:

No.

Potter Stewart:

We had one a couple of terms ago involving Arizona catalogs in which order of the administrative order effected apparently only one catalog although it was normally a state wide application and that ways of three-judge court we had attended direct appeal here?

George R. Nock:

Oh! I missed that Your Honor.

I am not aware of any others except (Inaudible) which did not decide the particular point and the affirmance across the case which is cited in the area.

Certiorari petition and Mr. (Inaudible).

Mr. Justice Brennan asked about Section 2600 that is Section which is called the inmate bill of rights.

It does not mention law books.

It just gives inmates the right to purchase, receive and read written material of all description with certain specific exceptions.

Yet it has been interpreted and I think corrected by the director of correction as requiring the inmates to be allowed to purchase a law book at specified space limitation.

George R. Nock:

But it is rather ironic in that the full record will show that prior to enactment of the section, prison rules provides inmates to own personally on law books and to posses personally on law books and the reason for this and the basis on which we depended it was equal protection.

The director did not want to have the appellant inmate allowed to own more than the two law books that is not available to the indigent inmate and it was firstly then in the decision because of the concept of the statute.

It did not want to litigate in the state courts on unconstitutionality of statute upon that ground.

The appointment of counsel in the collateral proceedings is based on Mr. Justice White is detailed in People versus Shipman which is cited in our brief, that is 62 California 2nd, Shipman where the court in that case dealt with habeas corpus on officially moratorium petition is presented then counsel is appointed normally to handle the evidentiary hearing.

There is no appeal in habeas corpus —

Potter Stewart:

They need to re-file them?

George R. Nock:

They re-file on the higher Court and the appointment of counsel is not necessary requirement.

There is appeal in coram nobis cases.

Byron R. White:

But if they file officially adequate decision in the higher Court in California appoints?

George R. Nock:

Yes indeed.

And in coram nobis, the counsel was appointed in the Trial Court and as a matter of fact this counsel is always appointed automatically in the Court reviewing the denial of coram nobis for the case in litigation.

Mr. Wahl handled in various cases.

Mr. Chief Justice as commonly said to this books were in each prison and the regulations provide that there will be sufficient copies to provide regular access on that list in a weekly basis that is Administrative Manual Section 230.042 which is set out in both needs in the appendix.

Is that any (Inaudible)

George R. Nock:

Well, the regulation has not been fully implemented because of its litigation but and I do not know how whether there are as much in one set in each prison now but there will be to be sure (Voice Overlap).

Indeed an infinite number that is included.

They justified also that if there are any legal aid attorneys or public defenders.

They are not for the purpose of the habeas corpus although in one county, Solano County where the institution is located, the Judge automatically appoints counsel — appoints the public defenders or counsel whenever an order to show cause is issued.

He does not however normally confer with prisons.

Some County public defenders will continue to represent their clients, appellant clients in post-conviction proceedings.

Whether they are allowed to do so as a matter of between them in a particular for the supervisors.

It is neither authorization nor proposition on the state wide basis.

Potter Stewart:

If lawyers appointed for indigent at a criminal trial and withheld from the conviction does he have the duty under the state law to appeal the case if his client wants to?

George R. Nock:

Yes, he has the duty to file a notice of appeal which is the case of the appellate court sustain the point of counsel if the defendant is —

Potter Stewart:

The Appellate Court then appoints counsel.

George R. Nock:

Appoints counsel.

Potter Stewart:

They appoint the same lawyer or different one?

George R. Nock:

Usually a different one, usually the same lawyer that one had, unless he requests or the client requests that he is only appointed.

Potter Stewart:

And that is to the District Court of Appeals?

George R. Nock:

No, they normally simply the Court of Appeals.

Potter Stewart:

The Court of Appeals.

But there are various evidence in the District?

George R. Nock:

Yes there are a number of —

Potter Stewart:

And then the discretion area of petition under the Supreme Court of California?

George R. Nock:

Yes.

Potter Stewart:

Does counsel get appointed at that stage for an indigent or the same lawyer who was appointed by the Court of Appeals have the duty of carrying the burden?

George R. Nock:

There is no —

Potter Stewart:

Or an affirmance of the condition?

George R. Nock:

There is no duty to petition for a hearing, counsel was appointed to represent the individual.

Court of Appeals authorizes the petition for current hearing and normally does but it is not oblige to do so.

If the California Supreme Court grants a hearing it appoints counsel but is usually the same counsel appointed in Court of Appeals, but not necessarily.

Potter Stewart:

Well, how does he get inmate?

How does he get into this?

He has no help in preparing the petition to the California Supreme Court?

George R. Nock:

Well, not if the attorney does not do authority, but normally an attorney, well, at least if his clients requests a petition for hearing as the nine out of ten cases.

Potter Stewart:

Is he required to?

George R. Nock:

He is not required to because he has the option of concluding what he —

Potter Stewart:

What he is in case for —

George R. Nock:

Yes.

Potter Stewart:

Does he get it?

George R. Nock:

Yes.

Potter Stewart:

So they are much more often represented by counsel than are petitioners for writ of certiorari here to our Court?

George R. Nock:

Oh yes, yes indeed.

In the area of the case only we call a couple of cases who are in need to file his own petition for that.

And I know of none where an attorney has refused to file upon the request of an indigent client.

But he will often will if the appeal was frivolous to begin with (Inaudible) Supreme Court and client will advise not to quit.

William J. Brennan, Jr.:

I gather then these legislations that Mr. Wahl mentioned to us is that they can access.

They change the situation very much aware?

George R. Nock:

I mentioned earlier the legislation Your Honor in this case.

The question was really as to whether this is or rather Mr. Wahl indicated that our position was that this would encourage, these law books would encourage litigation.

George R. Nock:

We take no such position.

I have no idea whether it would encourage litigation or not.

Personally I think law books have make no difference in the volume of litigation or question of how many, the percentage I should think how frivolous petition.

But legal assistance before even lawsuit, it might cut down the volume of frivolous petitions somewhat although that is speculative the way it has to rely on experiences as the case is adopted uniform for his conviction.

Procedure doctrine and what I can tell by reading the law review articles locally on the subject of the verdict is not in yet.

It is (Inaudible) post-conviction procedure or its equivalent has been cutting down the number of frivolous petition.

(Inaudible)

George R. Nock:

I know it said in the brief of amici and it set the 12 volume and by review beginning page 149 of it, very extensive and thorough survey of post-conviction remedies done for the Federal Judicial institute.

Starting on what page?

George R. Nock:

On page 149.

It runs about 35 pages.

And I thank you, Your Honors.

Warren E. Burger:

Thank you Mr. Nock.

Mr. Wahl, you acted at the appointment of the Court and at our request and we want to thank you for your assistance to the Court and of course to the assistance to your client.

John Eshleman Wahl:

Thank you for your appointment.

Warren E. Burger:

The case is submitted.