carl b. cribbsVs.arthur r. wiedinger|Department of Correctio... -- eLawyers

Petitioner: CARL B. CRIBBS, RICKEY J. CARTER, JAMES L. BLANTON, RONALD A. RHUE, GABRIEL SCHLOSSER, RICHARD HALL, KENNETH M. CORDELL, AND MARK KALINA
Respondent: DEPARTMENT OF CORRECTIONS
Judges: J. D. PARRISH
Agency: Department of Corrections
Locations: Olustee, Florida
Filed: Aug. 13, 1990
Status: Closed
DOAH Final Order on Wednesday, September 11, 1991.
Latest Update: Jul. 21, 1994

Summary: The central issue in this case is the Petitioners challenge to the proposed rule to be designated Rule 33-3.0055, Florida Administrative Code. The proposed rule was developed to implement the judgment entered in Hooks v. Wainwright, 536 Supp. 1330 (M.D. Fla. 1987). That decision dealt with the issue of providing inmates adequate and meaningful access to courts. Whether or not the rule accomplishes that task is not addressed by this order. Rather, this order considers whether the proposed rule co

90-5031.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL B. CRIBBS, RICKEY J. CARTER, ) JAMES L. BLANTON, RONALD A. RHUE, ) GABRIEL SCHLOSSER, RICHARD HALL, ) KENNETH M. CORDELL and MARK KALINA )

)

Petitioner, )

)

vs. ) CASE NO. 90-5031RP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing ink the above-styled matter was held on March 26, 1991, in Oluste, Florida, before Joyous D. Parrish, a designated hearing off icer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioners: Carl B. Cribbs

Baker Correctional institution

P.O. Box 500

Olustee, Florida 32072

For Respondent: Arthur R. Wiedinger, Jr.

Assistant Attorney &eneral Department of Legal Affairs The Capitol, Suite 1602

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The central issue in this case is the Petitioners challenge to the proposed rule to be designated Rule 33-3.0055, Florida Administrative Code. The proposed rule was developed to implement the judgment entered in Hooks v. Wainwright, 536

Supp. 1330 (M.D. Fla. 1987). That decision dealt with the issue of providing inmates adequate and meaningful access to courts. Whether or not the rule accomplishes that task is not addressed by this order. Rather, this order considers whether the proposed rule comports with Section 120.54, Florida Statutes. That is, whether the proposed rule is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

This case began on August 13, 1990, when the Petitioners filed a petition to determine the invalidity of a proposed rule; that rule is to be designated Rule 33-3.0055, Florida Administrative Code. More specifically, the Petitioners have challenged the proposed rule and alleged: that it constitutes an
unconstitutional delegation of legislative authority to superintendents who are granted broad discretion to decide what the law library policies will be; that the proposed rule is vague and ambiguous; that the Department has exceeded its rulemaking authority; that the proposed rule arbitrarily designates libraries as major, minor, or starter without explanation as to which institutions would receive which type of collection; that the proposed rule fails to establish minimum guidelines for hours of operation, materials, and assistance; and that the proposed rule fails to adequately consider deadlines imposed by court orders or procedural rules so that confined individuals do not miss such deadlines.

Originally, the hearing in this case was scheduled for September 13, 1990, however, both parties requested a continuance in the case and the hearing was cancel led to afford additional time for discovery. Further, since the Petitioners are incarcerated and communicate by mail, additional time was necessary to coordinate discovery responses, to effectuate service of subpoenas, and for preparation for hearing. Following the resolution of a series of discovery-related issues, the hearing was finally scheduled for March 26, 1991. A motion to dismiss filed by the Department of Corrections (Department) on August 29, 1990, was denied. The motion to dismiss challenged this forum's jurisdiction to respond to the constitutional allegations raised by Petitioners. In that regard, the Petitioners were advised that this forum does not have jurisdiction to resolve the issue of whether the proposed rule complies with the decision rendered in Hooks v. Wainwright, supra. Ruling on the Department's subsequent renewed motion to dismiss was reserved but is hereby denied.

Incidental to the scheduling of this case was a request for continuance filed by petitioner Schlosser who had been transferred to the Zephyrhills Correctional institute. Mr. Schlosser had previously submitted a statement authorizing Mr. Cribbs to act in his behalf. Moreover, from the outset of the case Mr. Cribbs had acted as the lead petitioner regarding this matter and had responded to all preliminary issues on behalf of the petitioner inmates. At the hearing Mr. Cribbs was formally accepted as the Petitioners' qualified representative and Mr. Schlosser's late-filed letter, treated as a motion for continuance, was denied. At that time, all other Petitioners present acknowledged that Mr. Cribbs had acted in their behalf and would conduct the hearing in their behalf also. Moreover, the Department stipulated that the establishment of standing as to one petitioner inmate could be construed to establish standing for all.

To that end, and in support of their challenge to the proposed rule, the Petitioners presented the testimony of the following witnesses: Al Cook, assistant superintendent of programs, Baker Correctional Institution (Baker); John J. O'Brian, Jr., correction officer II formerly assigned to operate the library at Baker; Alan Jack Overstreet, librarian at Marion Correctional Institution; Richard Belz, executive director of the Florida Institutional Legal Services; Patrick Collins, inmate at Baker; Kenneth Michael Cordell, petitioner; Ronald Anderson Rhue, petitioner; Mark Kalina, petitioner; Richard Hall, petitioner; Rickey James Carter, petitioner; James Norton Blanton, petitioner; Raymond E. Taylor, inmate assigned to serve as a researcher in the Baker law library; James A. Kennedy, correction officer assigned as library supervisor at Baker; and Carl Bruce Cribbs, petitioner.

The Petitioners' exhibits numbered 1 through 21 were admitted into evidence. Petitioner's exhibit A was stipulated by the parties to be a correct copy of the proposed rule, Rule 33-3.0055. Petitioners requested that official recognition be taken of the final order entered in DOAH case No. 83-1498R which was styled Gary M. Piccirillo, Douglas L. Adams and Brace Martin v. Department
of Corrections. Further, the Petitioners filed two articles published in the Florida Bar Journal which were not objected to by the Department.

The parties were granted ten days from the filing of the transcript within which to file their proposed orders in this case. The transcript was filed with the Division of Administrative Hearings on April 26, 1991. Thereafter, the Petitioners filed a request for an extension of time to file their proposed order. Additionally, Mr. Schlosser filed a notice of appeal regarding the denial of his request for a continuance and his inability to participate in the hearing that had been held March 26, 1991. Petitioners' request for an extension was granted and their proposed order was filed on May 16, 1991. The first district court of appeals dismissed Mr. Schlosser's appeal for lack of jurisdiction and its order was filed with the Division of Administrative Hearings on June 14, 1991. Specific rulings on the parties proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:
1. The Petitioners are inmates incarcerated at Baker and Zephyrhills Correctional institutions.
2. The proposed ruled, Rule 33-3.0055, entitled "Law Libraries," is intended to provide guidelines for the operation of institutional law libraries and the use of inmate law clerks by those incarcerated within the facility.
3. Petitioners currently use and, in the future, will require the use of law library facilities. Petitioners law library needs require access to federal as well as state reference materials. The subject matter of the reference materials required runs the legal gamut: administrative, civil and criminal. Accordingly, they will be substantially affected by the implementation of the proposed rule by the Department.
4. The challenged proposed rule is divided into five categories [the fifth category is erroneously numbered (4)]. Those categories are: general provisions; law library access; content of law libraries; inmate law clerks; and law library advisory council.
5. The general provisions category of the proposed rule acknowledges that the Department is to provide adequate access to the courts and to legal materials for inmates in the custody of the Department. That section further instructs each institution with a law library to develop operating procedures regulating the operation of the law library. Thus, the rule delegates to the facility superintendents the responsibility of coordinating all operations related to the law libraries and of training personnel and inmate staff who are to carry out that operation. This section does not identify which institutions will have libraries.
6. The second section of the proposed rule, law library access, directs the superintendent of an institution to establish library hours and schedules to permit each inmate "maximum access" to legal materials consistent with that facility's security. That section provides no guidelines or minimum criteria outlining what the Department deems adequate to provide such "maximum access." Subsection (b) states that inmates in administrative or disciplinary confinement need not be taken to the library if that would create a security or safety risk
  but does not provide sufficient guidelines for how the facility might arrange to have materials made available to such inmates. Frequently, inmates are unaware of what materials are needed for reference and are unaware of procedural rules related to their cases. Inmates relying on materials furnished by inexperienced law clerks have missed court deadlines, have filed inadequate documents, or have had to request extensions in order to comply with deadlines.
7. The content of the law libraries is addressed in section (3) of the proposed rule. That section provides that institutions will have "major, minor, and starter collection" law libraries based upon their size, location, inmate need and mission. The proposed rule does not describe which institution will receive which collection nor does it explain how inmate need and mission relate to the location, size or content of a facility's library. Inmates incarcerated at Baker require access to federal and state reference materials. Whether the library at Baker will contain those materials in the future is unknown. Currently, inmates at Baker must request copies of cases not available at Baker from other institutions which may or may not have same. Delays in obtaining and copying reference materials inhibit inmates from timely filing court documents.
8. The proposed rule provides that inmate law clerks shall be assigned to assist inmates in the research and use of legal materials. That section does not provide for minimum training of such clerks nor does it address how inmates are to be assisted when the "first-come, first-serve" basis is inadequate to meet court imposed or procedural deadlines. Moreover, the proposed rule does not address what training, if any, institution personnel will have in order to assist inmate law clerks to provide appropriate guidance.
9. Previously, and at the time this proposed rule was promulgated, the operation of library programs at Baker and other institutions fell under the authority of the Correctional Education School Authority (CESA). Budget cuts within the CESA resulted in the elimination of a librarian position at the Baker facility. In order to keep the library open, a correction officer has been assigned to supervise the library. Consequently, the library facility is available during that individual's work shift. Chapter 91-281, Laws of Florida, amended Section 20.315, Florida Statutes, to authorize the Department to provide library services.
10. Institutional Operating Procedures (IOP) govern the operation of the law library at Baker. Staffing and operation of the library is left to the discretion of the officer opening and closing the facility. The library at Baker is not subject to a minimum number of hours of operation.
11. Law clerks at Baker have assisted inmates in administrative, disciplinary, or protective confinement when those inmates had a deadline provided such inmate could prove they had such deadline. Inmates are often unaware of procedural deadlines until such deadlines have passed.
12. Both Mr. Cook and Mr. O'Brian requested clarifications from the Department's legal office regarding how the proposed rule would be implemented at Baker to resolve issues related to the operation of the law library but received no responses. Staff at Baker have had no legal training and are unfamiliar with how to conduct legal research. Consequently, inmates are left to their own resources and frequently use inmate law clerks who have become self-trained from working on their own cases.
13. At Marion Correctional Institution (Marion) inmates are afforded additional services in connection with the law library. Access to typewriters and copy machines are available so that inmates may complete documents related to their cases. The law library at Marion receives requests each month from inmates at other facilities who are seeking legal assistance or copies of cases not available at their institutions.
14. Like inmates in a confined status, inmates assigned to work camps do not have direct access to legal materials. Such inmates must request materials and legal assistance from adjacent facilities. In one instance, an inmate was required to file a grievance before access to legal materials was granted.
15. Inmates who have requested legal reference materials from other correctional institutions have waited as long as six months to receive responses from a request.
16. At Baker, inmates have had to forego educational opportunities in order to have access to the law library during its hours of operation when class schedules conflicted with law library hours.
17. The Department has considered the proposed rule over a period of six to seven years since the litigation of the Hooks v. Wainwright decision began.
18. Problems arise between inmates when law clerks show favoritism toward one inmate over another inmate. Thus, it is appropriate to devise a system to place all inmates on notice of how inmate law clerks are to prioritize their time and assistance.
  
  CONCLUSIONS OF LAW
19. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of these proceedings.
20. Section 120.54(4)(a), Florida Statutes, provides:
  
  Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.
21. Section 120.52(8), Florida Statutes, provides, in part: "Invalid exercise of delegated legislative
  authority" means action which goes beyond the
  powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
  * * *
  1. The agency has exceeded its grant; of rulemaking authority, citation to which is required by S. 120.54(7);
  2. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by
    S. 120.54(7);
  3. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
  4. The rule is arbitrary or capricious.
22. The Petitioners in this case have standing to challenge the proposed rule as they have established that their interests will be substantially affected by it.
23. The Petitioners have established that the law library needs of inmates require access to diverge state and federal reference materials. The Department has not explained why one facility may receive the designation of "major" versus another as "minor." Presumably, institutions will receive some type of collection and then the superintendents of those facilities will devise IOPs to assure that the intent of the rule is met. This process vests the superintendents with the authority to implement policies which may or may not accomplish the purpose of the rule. The effectiveness of the rule depends on cooperation among facilities. IOPs promulgated by different institutions may be incompatible 1/ and would, therefore, inhibit the sharing of reference materials among the facilities. For example, the guidelines addressed by the proposed rule do not show how one institution might require another institution to timely comply with research requests.
24. The Petitioners have established that the persons charged to implement the rule at Baker have had doubts as to how the rule is to be utilized. If those individuals do not comprehend the minimum standard addressed by the rule, how can the proposed rule be adequate to set reasonable guidelines? Minimum guidelines as to hours of operation, materials, and assistance would place inmates, and those charged to operate the facility, on notice of the law library resources available to them. The proposed rule does not accomplish those results.
25. The correctional institution library facilities have been under the authority of the CESA. At the time this rule was proposed the Department did not have the authority over library services. Now, with the amendment to Section 20.315, Florida Statutes, the Department is charged with the responsibility of providing library services. The guidelines for providing those services must be certain enough so that the IOPs from all institutions are not required to make sense of the programs and services available.

ORDER

Based upon the foregoing, it is concluded that the Department's proposed rule, Rule 33-3.0055, Florida Administrative Code, is invalid as it constitutes an invalid exercise of delegated legislative authority since it is vague, fails to establish adequate standards for institution decisions, or vests unbridled discretion in the institution without sufficient guideline.

DONE and ORDERED this 11th day of September, 1991, in Tallahassee, Leon County, Florida.

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1991.

ENDNOTES

1/ It should be noted that IOPs are not subject to rule challenge. Therefore, when, as here, the rule provides inadequate guidelines and is vague, the discretion available to the superintendent to implement that rule by way of the IOPs does not cure the vagueness of the rule nor assure that the rule will be implemented in a permissible manner.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-P

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONERS:

1. Except as addressed in the foregoing findings of fact Petitioners proposed findings of fact must be rejected since they are, substantially, a recitation of testimony, conjecture based upon that testimony, or irrelevant. Additionally, Petitioners' individual paragraphs contained numerous proposed findings which would require review on a sentence-by-sentence (and sometimes phrase-by-phrase) basis. Petitioners have continued to argue constitutional issues beyond the jurisdiction of this forum. Accordingly, findings related to those matters must also be rejected.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

Paragraphs 1 through 3 are accepted.
Paragraph 4 is rejected as vague or irrelevant.
Paragraph 5 is rejected contrary to the weight of the evidence.
Paragraph 6 is accepted to the extent that it describes who Mr. Kennedy is; otherwise rejected as to the conclusion as contrary to the weight of the evidence.
Paragraphs 7 through 9 are accepted.
Paragraph 10 is rejected as irrelevant.
Paragraph 11 is accepted with the deletion of the word "adequately" which is contrary to the weight of the evidence.
Paragraph 12 is rejected as contrary to the weight of the credible evidence.
Paragraph 13 is accepted.
Paragraph 14 is accepted to the extent that it: suggests that it is the intent of the rule; however, the rule is flawed and vague in that it fails to address how that intent is to implemented.
Paragraphs 15 through 17 are accepted.

COPIES FURNISHED:

Carl B. Cribbs, #036458

Baker Correctional Institution

P.O. Box 500 Solute, FL 32072

Rickey J. Carter, #282501 Baker Correctional Institution