Rice v. State (Supreme Court)

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 89,759

JERRY RICE, et al.,

Appellants,

v.

STATE OF KANSAS, et al.,

Appellees.

SYLLABUS BY THE COURT

1. A prison inmate retains those rights under the First Amendment to the United States Constitution that are not inconsistent with his or her status as a prisoner or with the legitimate penological objectives of the corrections system.

2. The Constitution protects the right to receive information and ideas. Both the sender and the inmate have fundamental interests in the inmate's access to the information in published material selected for delivery.

3. In considering inmates' claims alleging a deprivation of constitutional rights, an appellate court applies a rational basis test: When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.

4. In determining the reasonableness of a prison regulation, relevant factors include (1) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest; (2) whether the regulation or practice allows inmates an alternative means of exercising the subject constitutional rights; (3) the impact of accommodation of the asserted right on guards, other inmates, and the allocation of resources generally; and (4) the absence of ready alternatives to the regulation or practice.

5. An appellate court's evaluation of a claimed deprivation of an inmate's constitutional right must accord great deference to prison administrators in their adoption and execution of policies and practices intended to advance valid penological objectives, including deterrence of crime, rehabilitation of inmates, and institutional security.

6. Under the rational basis test, a legitimate governmental objective must be content neutral.

7. Under the facts of this case, substantial competent evidence supports the district court's finding that K.A.R. 44-12-601(q) and Internal Management Policy and Procedure 11-101 are rationally related to the rehabilitation of inmates. Additionally, K.A.R. 44-12-601(q) and IMPP 11-101 are rationally related to the Kansas Department of Corrections' legitimate interest in security.

8. Under the facts of this case, substantial competent evidence supports the district court's finding that access to the prison library was a legitimate alternative method of exercising the inmates' First Amendment rights.

Review of the judgment of the Court of Appeals in 31 Kan. App. 2d 964, 76 P.3d 1048 (2003). Appeal from Leavenworth district court; ROBERT J. BEDNAR, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed. Opinion filed August 20, 2004.

Bruce Plenk, of Law Office of Bruce Plenk, of Lawrence, argued the cause, and Max Kautsch, of the same firm, was with him on the briefs for appellants.

Timothy G. Madden, of Kansas Department of Corrections, argued the cause, and Kenneth R. Smith, special assistant attorney general, was with him on the briefs for appellees.

The opinion of the court was delivered by

NUSS, J.: Petitioners, who are inmates at Lansing Correctional Facility (LCF), challenge the constitutionality of two of respondents' regulations. The first, K.A.R. 44-12-601(q)(1), requires that all inmate purchases of books, newspapers, and periodicals be made through their inmate account. The second, Internal Management Policy and Procedure (IMPP) 11-101, among other things, limits the amount of inmates' monthly spending. The joint effect is to restrict the amount of subscriptions to newspapers and magazines the inmates receive ­ through monetarily limiting their direct purchases and through completely banning their receipt of gift subscriptions purchased by those outside LCF.

The district court upheld the regulations, finding they were reasonably related to inmate rehabilitation, a valid penological interest of the Kansas Department of Corrections (DOC). In a split decision, the Court of Appeals held that the regulations were unconstitutional. Rice v. State, 31 Kan. App. 2d 964, 76 P.3d 1048 (2003).

This court granted the State's petition for review to consider the sole issue of whether these regulations violate petitioners' rights under the First Amendment to the United States Constitution and similar rights under Section 11 of the Kansas Constitution Bill of Rights. We hold that the regulations are reasonably related to valid penological interests of DOC and are therefore constitutional. Accordingly, we reverse the Court of Appeals and affirm the district court.

FACTS:

Petitioners filed a petition in district court pursuant to K.S.A. 60-901 et seq., seeking to enjoin DOC from denying them gift subscriptions to newspapers and magazines. To justify their actions, the respondents DOC, Warden David McKune, and LCF's risk manager William Cummings relied upon K.A.R. 44-12-601 and IMPP 11-101.

K.A.R. 44-12-601 concerns the subject of inmate mail. Subsection (q)(1) provides in relevant part:

"Any inmate may receive books, newspapers, and periodicals, except for those inmates assigned to the reception and diagnostic unit for evaluation purposes. All books, newspapers, or periodicals shall be purchased through special purchase orders. Only books, newspapers, or periodicals received directly from a publisher or a vendor shall be accepted." (Emphasis added.)

For an inmate to receive a newspaper or magazine, a copy of DOC's publication form must be completed and a special purchase order (SPO) must be sent to the LCF business office. Funds are then withdrawn from the inmate's LCF account ­ the only banking account an inmate is allowed to use. The mailroom notes this fact on its database, and then delivers the publication which has been directly mailed by the publisher to LCF in the inmate's name. An inmate who is not on the authorized list of those who have purchased periodicals, but who nevertheless receives a publication, is notified and given 7 days to complete the proper paperwork or else the publication is discarded.

All items purchased for an inmate's use must be purchased through his LCF inmate account. As a result, the requirement of purchasing through SPO's essentially prevents an inmate from receiving gift subscriptions or publications directly purchased by those outside LCF and then mailed by the publisher to LCF. Moreover, K.A.R. 44-12-601(b) provides that inmates must comply with all mail procedures established by order of the warden and that "circumventing or attempting to circumvent mail procedures or restrictions by any means" is prohibited.

DOC also issues interpretations of and guidance regarding Kansas statutes and regulations in what is known as an Internal Management Policy and Procedure Manual. IMPP 11-101 addresses DOC's "Offender Privileges and Incentives" and was developed pursuant to DOC's stated policy to "implement a comprehensive system of earnable offender privileges, which will provide an effective means of managing the offender population and reinforcing constructive behavioral changes in offenders."

As described by the Court of Appeals, 31 Kan. App. 2d at 966:

"IMPP 11-101 sets forth a comprehensive system of 'Earnable Privileges' and 'Incentive Levels' under which inmates can progress to increasing benefits by avoiding disciplinary actions and criminal behavior and by participating in programs or work assignments. 'Earnable Privileges' include '[u]se of outside funds.'

"Section VI of IMPP 11-101 speaks to 'Limitation[s] on Use of Incoming and Outgoing Funds':

'A. For inmates assigned to Intake Level, outgoing funds shall be limited to fees for legal services, and for inmates on Level I, no outgoing funds may be used to purchase books . . . or . . . newspaper or magazine subscriptions.

'B Except as provided below, there shall be a $30.00 limit on outgoing funds.

1. Inmates may exceed the $30.00 limit, if necessary, for the purchase [of] a primary religious text if the cost of the text is greater than that amount.

2. The $30.00 limit shall not apply to payments to the following:

a. The court for verified restitution and/or court costs;

b. Verified fees payable to an attorney for legal services;

c. Verified child support payments;

d. Specialized fees, expenses as authorized by the warden or designee; and,

(1) As possible, approval for such payments shall be payable to the vendor or service provider only.

e. Purchases of approved handicraft materials/supplies.

'C. Upon recommendation of the unit team and approval of the warden or designee, offenders assigned to private industry (minimum wage) or those who receive government benefits may be authorized, on an individual basis, to send out funds in excess of $30.00 per pay period limit.

'D. Inmates on Incentive Level II or Incentive Level III are authorized to maintain one (1) newspaper subscription, and may exceed the $30.00 limit for outgoing funds in order to do so.

1. The expense for the newspaper subscription shall be included in the $30.00 limit.

2. Such an exception shall be allowed no more than one (1) time per every three (3)-month period.'"

As noted, the effect of IMPP 11-101(VI), coupled with K.A.R. 44-12-601, is to restrict the amount of subscriptions to newspapers and magazines the inmates receive ­ through monetarily limiting their direct purchases and through completely banning their receipt of gift subscriptions purchased by those outside LCF.

Inmates are also allowed to receive outside funds, such as a money order, certified check, or a cashier's check, but cannot receive a personal check or cash. There are no restrictions on who the sender of such funds may be or how much money a person may send to an inmate, but as IMPP 11-101(VI) and similar regulations demonstrate, LCF places explicit restrictions on what the inmate may use the funds for and in what amounts. The mailroom sends the funds to the business office, which deposits the funds in the inmate's account.

Margie Phelps, who formerly served as the Deputy Warden of Support Services at LCF, oversaw the mail process for the facility. She issued three DOC interdepartmental memoranda to all inmates regarding the receipt of periodicals. The first memo, dated February 7, 2001, stated in part:

"Effective March 19, 2001

'Periodicals

'In order to receive a magazine or newspaper,

1. You must purchase the periodical through the Business Office. The mailroom will keep a list from SPO's of all inmates who have made purchases through the Business Office. When you send your SPO to the business office be certain the name of the periodical is on the SPO. Otherwise, you will not be on the list of inmates who have purchased periodicals, and your magazine or newspaper will not be processed. Also, you must complete the attached form and include it with your SPO when purchasing a periodical.

2. The magazine or newspaper must have a label with your name on it.

'All periodicals received after March 19 that do not comply with these requirements will be sent to the visiting rooms (if appropriate) or destroyed.'"

Phelps testified that she heard from over a hundred inmates in response to her memo and discussed with them the reasoning behind the policy, the past inconsistent enforcement of the policy, and the inmates' rights under the First Amendment.

Phelps' second memo is dated February 20, 2001, and is quoted in the district court's memorandum decision, though it is not part of the record on appeal. It was prepared in response to the inmates' requests and states:

"IMPP 11-101, regarding incentive level system, states:

"Inmates on Incentive Level II or Incentive Level III are authorized to maintain one (1) newspaper subscription, and may exceed the $30.00 limit for outgoing funds in order to do so.

1. "The expense for the newspaper subscriptions shall be included in the $30.00 limit.
2. "Such an exception shall be allowed no more than one (1) time per every three (3) month period.

"Policy requires that all periodicals be purchased through the business office by an SPO. It does not allow for persons outside the facility to purchase and send in subscriptions to periodicals. If you are on Incentive Level II or III you may exceed the $30 limit once every three months for newspapers only. Beyond this, your periodical purchases must be within the $30 per month limit.

"This means if you are currently receiving subscriptions that you did not pay for through the business office, you need to divert them, because after the effective date stated in the memo those will not be sent in. It also means in the future only those periodicals purchased by SPO, clearly identified as periodicals through the periodical cover sheet and on the SPO, will be processed through the mailroom.

"If you have already purchased a periodical through the business office by SPO, you should already be in the system approved for this item. It is important that you make it clear in your paperwork what periodicals you are ordering. We are going through the records at this time and making a list of those inmates who have periodical purchase on file. All inmates and periodicals on that list will be sent through after the effective date.

"This policy is not new, and has been in place for some time. My recent memo simply clarified what part the mailroom has in enforcing the policy. Also, since it appeared some inmates were not following the policy, we gave reasonable notice of the fact that this needs to be corrected.

"If you are receiving a free religious periodical, so long as it is not coming in by bulk mail, we will continue to process that periodical. Any item that is free and comes in by bulk mail will not be sent in, because departmental policy disallows processing bulk mail items."

Approximately 3 weeks after Phelps' first memo, and 10 days after her second, she distributed her third memo, dated March 2, 2001, which stated in part:

"On 2/7/01 you received a memo indicating that it would be necessary to comply with IMPP 11,101 [sic] concerning all periodicals and newspapers.

"Since this memo was issued, we have had dialogue with inmates and unit team staff. From this dialogue it became clear that there is confusion on both sides about how this policy is to be applied.

"Accordingly, to accommodate this uncertainty, the facility is going to permit each inmate on privilege/incentive levels II and III a one-time only grandfathering opportunity for one year. This means if you are currently receiving periodicals that you did not purchase through the business office, you may select one, and continue to receive it for no more than 12 months from today's date. . . .

. . . .

"Please be assured we have reviewed this matter carefully. We appreciate the concerns some of you have raised about the First and Fourteenth Amendment rights you have to reading materials. However, it is important to realize that the department and facility have an overriding interest in the implementation of an effective privileges and incentives program, and these limits on periodicals are crucial to that program. There is no absolute prohibition on periodicals, so we believe this is a proper balancing of everyone's legal interests and objectives.

"Concerning free publications, please be advised if the publication is received other than by bulk mail, and you have advised us in advance you are receiving this publication, with verification that it is free, you will continue to receive the periodical. Bulk mail items are not approved, and will not be sent to you by the mailroom.

"Finally, please be advised that we periodically seek input from the inmates about what periodicals they would like us to purchase for the library. This is another option available, and if you have an appropriate periodical you would like to have available in the library, send me a form 9 for review."

In addition to overseeing the mail facility, Phelps also oversaw the operation of inmate libraries. She testified that she received a significant number of requests for publications in response to her March 2 memo and therefore added suggested periodicals to the library. After talking with the librarian and looking over the library lists, Phelps concluded there were library options available that were unused. Based on the information she was receiving, including feedback from inmates and her own observations, Phelps concluded that the library was meeting the needs of the inmates choosing to use it.

An estimated 900 inmates reside in maximum security at LCF. They may access the prison library during two daily periods, one in the morning and one in the afternoon. Six inmates from each of the nine cellhouses are allowed to go during each period, and inmates must choose between using the library and participating in other recreational activities. Inmates must sign up for the library period on a sheet in an open area of the cellhouse. They are not allowed to check out magazines from the library, but are allowed to check out hardback books and some paperback books.

As the Court of Appeals found, in response to inmate complaints, library visitation times were adjusted and inmates were encouraged to request specific publications be added to the library's holdings. The deputy warden stated that a review of actual library use revealed inmate sign-up sheets often were not full. An inmate is permitted to have up to 10 magazines and newspapers of his own in his cell at one time. 31 Kan. App. 2d at 968-69.

Phelps also testified that based upon her historical analysis of IMPP 11-101, she considered it an incentive and privilege regulation. She stated that the relationship between the SPO process and IMPP 11-101 was to provide some incentives for good behavior. According to her, DOC's mission is to try to change behavior, to get inmates to make better decisions, be more accountable, and to think through their decisions. Unfortunately, the gift subscriptions were a very easy way to circumvent the incentives and eliminated the receipt of magazines and newspapers as a privilege to be earned. According to Phelps, one of the things inmates could achieve through the incentive program was using a certain amount of money in a certain way. The $30 limit advances prison security goals, i.e., by reducing a practice called strong-arming. She testified that IMPP 11-101 predominantly concerns the behavior of the offender, but she believes that controlling behavior is always a security issue for the prison.

David McKune, LCF's warden, participated in the development of IMPP 11-101 and testified that the purpose of the regulation was to develop a system that would lead to better inmate behavior and better inmate accountability and responsibility. LCF's desire was to accomplish this through a system of rewards and incentives rather than a system of negative sanctions. He testified that improved inmate behavior would result in a safer environment for the staff and the other inmates.

William Cummings, LCF's risk manager and the DOC Secretary's designee for review of inmate grievances, testified that one penological objective of the ban on gift subscriptions is to require inmates to meet their financial obligations, such as court fees, restitution for damages, and child support obligations. Cummings further testified about a second penological objective contained in the regulation: security. He stated that the overriding rationale of IMPP 11-101, however, concerns yet another penological objective: to encourage appropriate inmate behavior and good decision-making processes.

Cummings gave one example purporting to touch all three objectives. An inmate engaged in dealing and trading with another inmate, which is prohibited under the inmate rule book. The first inmate had a negative balance in his inmate account of nearly $2,500 for fines, fees, restitution, and postage loans. He therefore arranged for his family and friends to send the second inmate $80 in money orders and gift subscriptions to the Kansas City Star and FHM magazine through that inmate's account, with the apparent agreement that the second inmate would then forward "his" property to him. The second inmate failed to do so, even after demands by the first. The first inmate then made threats toward the second inmate who had failed to carry out his part of the bargain. Cummings testified that if the first inmate's friends and family had sent the $80 directly to the first inmate's account, the prison would have used the money to help pay off the negative balance.

The first inmate's written grievance to the prison administrators stated in relevant part as follows:

"'[S]ince you two cocksuckers love to fuck with me, here's an open invitation. On or about 9/6/01, inmate in B1 received a $10 money order from Oklahoma on my behalf and on 9/7/01 he received $70 from a visitor in South Carolina on my behalf. He also received a Kansas City Star newspaper on my behalf.

". . . As you can see therefrom, the money on his prison account is actually mine. . . .  Please seize the $80 on his account before he spends any of it.

". . . I'd rather you cocksuckers seize my family money and confiscate my newspaper and charge me for rule violations than for this sissy to spend a penny of my family's money meant for me or him reading my newspapers and gloating over how he got over on someone again. I am simply another of his many this snake has gotten.

"You should move one of us without any delay. He has a pacemaker and I will do my utmost to cause him great distress and panic attacks. I hope for him to have a heart attack and die, but then if you both refuse to move one of us out of B1 and he does keel over, your deliberate indifference make you equally liable.

"Spare yourselves from interviewing me. Go ahead and take my money and newspaper. I'll deal with him in my own special manner. Excuse me. In my own talented ways. You can return the $80 to my 80-year-old mother or stick it up your asses 50/50, and of course if he spends a penny of this money and you allow it, I'll sue you for not doing your God damn duties."

According to Cummings, since inmates are not allowed to possess currency, they use cigarettes, canteen items, and magazines in a barter system. Debts can be incurred from illegal activities such as gambling, prostitution, extortion, and drugs. He testified that one of the first things LCF authorities tell inmates is to not get into debt. It multiplies, the lender sells the debt to another inmate, and that inmate then attempts to collect. He testified that dealing and trading is probably one of the things that gets inmates into trouble the most.

Roger Bonner, chief investigator at LCF, supervises the Intelligence and Investigations unit, sometimes called the "I and I." He testified that money tracking is a daily part of the investigations process and that dealing and trading constitutes roughly 50 percent of all disciplinary reports at LCF. The "transparency" of inmate transactions, particularly those involving magazines and newspapers, that results from the joint implementation of IMPP 11-101 and K.A.R. 44-12-601 gives investigators an opportunity to verify a complaint. He testified that magazines are third behind cigarettes and electronics in disciplinary reports regarding dealing and trading, constituting 25 to 30% of the cases. Most of the problems in magazine dealing and trading reports concern periodicals of an "adult" nature.

The parties stipulated to the district court that petitioners' family members and friends paid for magazine or newspaper subscriptions in the petitioners' names. These gift subscriptions were sent directly to LCF for delivery by the publisher and addressed to the petitioners. Petitioners did not pay any portion of these gift subscriptions from their inmate accounts and did not present SPO's to LCF's business office in connection with these gift subscriptions. They did not receive delivery of these gift subscriptions at LCF.

The Court of Appeals summarized the respondents' facts and position as follows at 31 Kan. App. 2d at 969:

"Given the library alternative, the ability of Level II and III inmates to spend up to $30 per month to purchase periodicals, the possibility of spending more than that amount for a newspaper every 3 months, and the grandfathering of one gift publication for up to 12 months, the respondents argued that petitioners asserted a 'quite narrow' interest: 'the "right" to receive magazines and newspapers of the inmate's choice, without permitting fiscal transparency.'"

Before this court, respondents further add the ability of an inmate to petition the warden for permission to exceed the $30 limit per month. See IMP 11-101(VI)(B)(2)(d).

On the other hand, testimony from a number of the petitioners revealed the following facts:

Petitioner Kent Vanderveen has a job during the day and participates in arts and crafts in the evening. He has ordered craft items costing $150 during several months. He currently receives USA Today newspaper and the magazines Men's Journal and Smart Money. However, he has never requested permission of the warden to exceed the $30 limit to order books, magazines, or periodicals of any kind.

Vanderveen has seen inmates sign the library list for themselves and a friend, and has seen names scratched off the list and another inmate's name added. Vanderveen estimated that the library lists are filled 90% of the time. The library has magazines and newspapers, but not a wide variety. He testified that the library seems to carry fewer periodicals than it did a year ago. He also testified that pages are often missing from the library's magazines and newspapers.

Petitioner Jerry Rice currently receives Closeout News, the Kansas City Star newspaper, and the magazines Country Music Magazine and Popular Mechanics. He testified that he is allowed to go to the library during the day shift. In the cellhouse where Rice lives, inmates rotate days based on whether they are in even- or odd-numbered cells. He has observed that the list is always full and he often cannot get on the library list.

Petitioner Calvin Mercer also testified regarding publications he had received before and after the regulations were enforced.

ANALYSIS:

Standard of Review

Throughout the proceedings on the petitioners' petition filed under K.S.A. 60-901 et. seq., the petition has been treated as one for habeas corpus under K.S.A. 2003 Supp. 60-1501. Petitioners are inmates alleging violations of constitutional rights, a claim that would be proper under 60-1501. See Anderson v. McKune, 23 Kan. App. 2d 803, 806-07, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997). Because pro se pleadings are to be liberally construed, we too will consider the petition as if it were one for habeas corpus. See State v. Andrews, 228 Kan. 368, 370, 614 P.2d 447 (1980).

The standard of review for a K.S.A. 2003 Supp. 60-1501 petition is whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Collier v. Nelson, 25 Kan. App. 2d 582, 584, 966 P.2d 1117, rev. denied 266 Kan. 1107 (1998). Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. 25 Kan. App. 2d at 584-85. Conclusions of law are subject to de novo review. 25 Kan. App. 2d at 585.

As we review the petitioners' allegations, we are also guided by the following considerations.

"'[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' Price v. Johnston, 334 U.S. 226, 285[, 92 L Ed. 1356, 68 S. Ct. 1049] (1948). The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives ­ including deterrence of crime, rehabilitation of prisoners, and institutional security." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987).

However, convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison. Bell v. Wolfish, 441 U.S. 520, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). "In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974).

Additionally, the Constitution protects the right to receive information and ideas. Stanley v. Georgia, 394 U.S. 557, 564, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969). Both the sender and the inmate have fundamental interests in the inmate's access to the information in published material selected for delivery to him. Woods v. Daggett, 541 F.2d 237, 240 (10th Cir. 1976); see Crofton v. Roe, 170 F.3d 957, 959 (9th Cir. 1999). Here, the communication at issue is between the inmate and the publisher.

Five years ago in Pool v. McKune, 267 Kan. 797, 804-05, 987 P.2d 1073 (1999), this court set forth in detail its considerations relevant to the issues in the instant case:

"The standard of review is clearly delineated by the Court in Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). The Court formulated a standard of review for prisoners' constitutional claims that was responsive both to the 'policy of judicial restraint,' 482 U.S. at 85 regarding prisoner complaints and to the protection of constitutional rights. The Court adopted a rational basis test: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related