Appeal from the United States District Court for the Western District of Wisconsin. No. 71 C 29 JAMES E. DOYLE, Judge.
Swygert, Chief Judge, Kiley, Senior Circuit Judge, and Fairchild, Cummings, Pell, Stevens, and Sprecher, Circuit Judges. Stevens, Circuit Judge, with whom Swygert, Chief Judge, and Kiley, Senior Circuit Judge, join, concurring. Swygert, Chief Judge, concurring.
This is an appeal from the entry of a preliminary injunction by the District Court for the Western District of Wisconsin enjoining Wilbur J. Schmidt, the Secretary of the Department of Health and Social Services of the State of Wisconsin, and his agents from restricting correspondence between Juan Morales and his wife's sister. Morales v. Schmidt, 340 F. Supp. 544 (W.D. Wis. 1972). A decision by a panel of this court was handed down on January 17, 1973. Morales v. Schmidt, 489 F.2d 1335 (7th Cir. 1973). The facts are adequately stated in the above mentioned opinions. A majority of the active judges having so voted, this appeal was reheard en banc.
The general background of the situation in which the courts find themselves in litigation of the type in which the present case falls is aptly summarized by Judge Doyle of the Western District of Wisconsin:
"This is but one of a flood of constitutional lawsuits by prisoners. These suits have heavily burdened correctional authorities by requiring them to gather and to organize factual information for court pleadings, and to appear occasionally in court. The federal courts are also heavily burdened by this radical addition to their caseloads, and the absence of plaintiffs' counsel in most cases and the physical restraints upon the plaintiffs frequently render judicial administration unusually difficult. Many of these suits by indigent prisoners are wholly without merit under any view of the facts or the law; many are mischievous; some malicious. The plaintiffs are uninhibited by financial pressures. For many of these plaintiffs, that the very bringing of the suits in such numbers creates a serious problem for correctional authorities and the courts is a matter of indifference, and, perhaps, of wry satisfaction." 340 F. Supp. at 547.
Because of the volume of such cases, the problems of differentiating those presenting valid claims from those wholly lacking any cognizable basis for relief, the lack of guidelines in definitive Supreme Court opinions, and the understandable variances in individual judicial philosophies in the present fluxional area of constitutional law, difficulty has been experienced in articulating a disposition of the present case in a manner satisfactory to a majority of the active judges of this court. The problem is not in an acceptable enunciation of the basic guidelines applicable to controls that may properly be exercised by correctional authorities on the correspondence of those in their charge. Therefore, so that the disposition of this particular case may be no longer delayed, we address ourselves only to the narrow issues raised by this specific case.
(1) Although at the time of hearing in this court Morales had been released on parole, the case was not moot. We adopt the reasoning as to mootness set forth in the original opinion.
(2) The district court erred in its holding that governmental differentiation of treatment between (a) those who have been convicted of a crime and (b) those who have not been convicted of a crime must be justified by applying the principles developed under the constitutional guaranty of equal protection of the laws.
(3) The district court erred in its holding that the standard which the state was required to meet to justify its restriction on Morales engaging in correspondence with his sister-in-law was to demonstrate a compelling interest.
(4) The proper standard for consideration of the regulation or practice which restricted the right of free expression that a convicted person such as Morales would have enjoyed if he had not been convicted of a crime is that the State must show on challenge that such restriction is related both reasonably and necessarily to the advancement of a justifiable purpose of imprisonment.
It may well be that the same result which was reached by the district court in the particular facts here involved could have been reached if the standards we have herein determined to be appropriate had been applied. Error does not necessarily mandate reversal.
Because of the uncertainty inherent in the disposition of litigation upon an infirm predicate it is deemed necessary that the proceedings be remanded for further determination in accordance with this opinion. We also note that the posture of the case before the district court involved consideration of Morales as a prisoner rather than as a parolee, which he in fact then was, and presumably now is.
Because of the substantial lapse of time since the initiation of this appeal, during all of which time the defendant has been enjoined from interfering with correspondence between Morales and his wife's sister, we, as a discretionary matter, do not vacate the injunction, which will ...