COUNTY JAIL FACILITIES MAY BE REQUIRED TO PROVIDE ATTORNEY CONTACT VISITS WITH INMATES
On July 8, 2015, the California Supreme Court denied review of the Third District Court of Appeal decision entitled County of Nevada v. Superior Court (Siegfried), 236 Cal.App.4th 1001. The Court of Appeal held that the superior court did not abuse its discretion when it ordered that criminal defense attorneys were entitled to confidential contact visits with their clients who were inmates in the Nevada County Jail unless individual circumstances supported suspension of such visits.
FACTS AND PRIOR HISTORY
The commander at the Wayne Brown Correctional Facility in Nevada County (the “Jail”) gave notice in early 2013 that lawyers would generally no longer be able to meet face-to-face with their incarcerated clients in visiting rooms without glass partitions, but instead would generally be required to meet with their clients in glass-partitioned rooms. The jail commander cited safety and security concerns. Several inmates, real parties in interest, filed motions seeking an order for the restoration of what they characterized as “contact visits,” face-to-face visits in nonpartitioned rooms. The superior court consolidated the motions and held an evidentiary hearing.
The Court of Appeal observed that evidence presented on the consolidated motions in the superior court provided that, “For many years, attorneys representing individuals incarcerated at the jail routinely had face-to-face visits with their clients in nonpartitioned rooms at the jail. At the evidentiary hearing in this case, a former jail commander said that during his tenure he allowed attorneys to have such visits unless their clients were particularly violent or posed a threat.”
After hearing all of the evidence, the superior court ordered confidential attorney-client contact visits, stating, “‘It is not this court’s intention to direct the sheriff’s office on how to accommodate attorney-client contact visitation. The sheriff’s office and the county jail staff in particular have a long history of cooperating with the court and other county departments. They are in the best position to determine whether to revert to the previous means of providing contact visitation or modify existing facilities and/or procedures to accommodate attorney-client contact visits.’”
Petitioners, the County of Nevada and Nevada County Sheriff Keith Royal (collectively, the “County”), filed a petition for a writ of mandate in the Court of Appeal seeking to set aside the superior court’s order, noting that the policy was designed to protect the safety of the attorneys, Jail staff and other inmates. Petitioners noted that there previously had been an attack by an inmate on his attorney and decreased Jail staff, due to funding cuts, made it more difficult to provide staff to monitor contact visits between legal counsel and inmates. The Court of Appeal granted the County’s petition to stay the superior court order and ordered the parties to show cause why the superior court’s order should not be vacated. Amici curiae, including California State Sheriffs’ Association, the California Police Chiefs’ Association and the California Peace Officers’ Association, filed a brief in support of the County.
THE COURT OF APPEAL’S OPINION
The Court of Appeal held that, “jail inmates have a constitutional right to (A) confidentially confer with counsel, and (B) have contact visits with counsel as part of their right to meaningful access to the courts.”
The Court argued that the partitioned rooms did not violate inmates’ rights to confidentially confer with their counsel. However, the Court stated that substantial evidence was presented that “the partitioned rooms, as currently configured, limit or prevent an inmate from privately confiding facts that may incriminate or embarrass the inmate and create an impermissible chilling effect on the constitutional right to counsel.”
The Court further stated that, “ [p]enal institutions also have an obligation under the Fourteenth Amendment to assure all prisoners meaningful access to the courts.” Moreover, the Court held that, “[m]eaningful access to the courts include[d] the right to contact visits with counsel,” citing Ching v. Lewis, 895 F.2d 608 (9th Cir. 1990). In addition, the Court observed that, “[u]njustified restrictions on contact visits implicate[d] due process and [we]re a proper subject of concern for the courts.”
However, the Court agreed with the County’s position that there was no unrestricted right to contact visits with counsel. Moreover, the Court stated that, “[t]he Sixth Amendment does not guarantee an absolute right to a “‘meaningful relationship’” between an accused and his counsel, and physical touch between a lawyer and an inmate is not guaranteed.”
The Court stated that, “[i]n determining whether jail restrictions on attorney contact visits are reasonable, the relevant factors include (1) whether there is a valid, rational connection between the jail restriction and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right; (3) how the accommodation of the asserted right will impact guards, other inmates and the allocation of jail resources; and (4) whether the restriction is an exaggerated response to jail concerns.” The Court noted that these factors were set forth in the United States Supreme Court case entitled Turner v. Safley, 482 U.S. 78 (1987).
In applying these factors, the Court stated that the County’s policy met the first Turner factor by establishing, “a valid, rational connection between the jail restriction and the legitimate governmental interest put forward to justify it.” The Court observed that the Jail commander’s notice for the non-contact visits cited “the safety and security of the facility, attorneys, and [inmates] as well as … increased jail population and staffing issues.”
In addressing the second Turner factor, the Court stated, “substantial evidence show[ed] that at least one alternative [wa]s available. Contact visits [we]re available at the courthouse, although the evidence indicate[d] this alternative [wa]s not optimal.”
In analyzing the third Turner factor, the Court found that nonpartitioned attorney visits were common in many institutions. The Court further stated that there was no evidence that the costs of nonpartitioned attorney visits at the jail had been or would be extraordinary. Accordingly, the Court concluded the third factor favored contact visits.
Finally, the Court determined that the fourth Turner factor supported contact visits. In making this determination, the Court noted that nonpartitioned visits had been allowed for approximately 20 years before the change and there was evidence that additional locks, cameras and training could address the County’s security concerns. As such, the Court stated that the County’s policy represented an exaggerated response to security concerns.
Based upon its analysis of the Turner factors, the Court held that the superior court did not abuse its discretion in ordering contact visits.
However, the Court stated that it did not hold that institution-wide restrictions on attorney contact visits could never be justified, only that there was substantial evidence in this particular case to support its determination that the restriction in Nevada County based was an exaggerated response on the evidence before it.
HOW THIS AFFECTS YOUR AGENCY
The case relied upon by the Court of Appeal in reaching its conclusion that an inmate has a Fourteenth Amendment constitutional right to contact visits with his or her legal counsel, the Ching decision, has been criticized and has not been followed in subsequent Ninth Circuit cases. Specifically, the Ninth Circuit Court of Appeals, in Casey v. Lewis, 4 F.3d 1516 (9th Cir. 1993), found that a policy prohibiting attorney-client contact visits was reasonable and justified on the basis of anticipated security violations. In criticizingChing, the Casey court specifically noted that “the defendants in Chingfailed to offer any justification whatsoever for their denial of “contact visitation” and the Court had “referred to their policy as ‘arbitrary.’” Casey, at p. 1523. Indeed, the Casey court also recognized that the opinion in Ching did not apply the Turner v. Safley factors, as is required when courts are determining the constitutional validity of penological rules and procedures.
Despite the shaky legal underpinnings of the Court of Appeal’s decision, it constitutes legal precedent that those managing penal institutions must be aware of. Criminal defense counsel seeking contact visits will likely argue that this decision has broad-ranging effect, despite the Court’s own admonition that it based its ruling on the unique facts and circumstances before it.
As always, if you wish to discuss this case in greater detail, feel free to contact James R. Touchstone at (714) 446 – 1400 or via email at jrt@jones-mayer.com.
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