This is an appeal from a declaratory judgment rendered by the United States District Court for the Western District of New York, Henderson, J., which held unconstitutional certain provisions of the New York State Code of Rules and Regulations (7 N.Y.S.C.R.R., Chap. V) relating to prison disciplinary hearings, and which further prescribed the proper procedures to be implemented in all such hearings.
Moore and Oakes, Circuit Judges; Tyler, District Judge*fn* Oakes, Circuit Judge (dissenting).
Between September 9 and 13, 1971, a disturbance by the inmates at the Attica Correctional Facility (Attica) resulted in many acts of violence and many deaths. A not unexpected aftermath has been an attempt to ascertain, both inside and outside prison walls, such persons as might have been responsible. Outside the prison a special grand jury was impaneled to consider possible criminal charges; inside the walls there remains the possibility of disciplinary hearings against inmates who took part in the disturbance.
Anticipating criminal and/or disciplinary action against them, nine*fn1 inmates, purporting to sue on behalf of all inmates of Attica subject to disciplinary hearings as a result of the events at Attica between September 9th and 13th, filed a complaint on November 16, 1971,*fn2 seeking injunctive relief against the holding of such hearings on the ground that adequate procedural safeguards had not been provided. A "declaration that the facts complained of are unconstitutional" was also sought.
Plaintiffs-appellants (as Petitioners) asked that a three-judge court be convened. This request was denied; on appeal the denial was reversed by this court and remanded, Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973). On remand plaintiffs withdrew their request for an injunction. This left only the declaratory issue for the District Court's determination.
The District Court carefully considered each contention raised by plaintiffs, namely, (1) fear of self-incrimination in connection with matters pending before the special grand jury; (2) inability to be present to confront and cross-examine witnesses; (3) failure to require testimony under oath; (4) no opportunity to present evidence in own behalf; (5) lack of counsel or counsel substitute; (6) failure to provide an impartial tribunal; and (7) failure to provide for a written decision based upon substantial evidence. More specifically, the Court also dealt with charges that the rule allegedly violated was not made known to the inmate, that the rules were too general and vague, and that copies of the rules were not given to inmates.
The Court then proceeded to analyze the Rules (in order as they appear in the District Court's opinion, §§ 251.5, 252, 253, 253.2, 253.3, 253.4, 253.5, 270.2, 270.4, 260.4, 261, and 261.3). 7 N.Y.S.C.R.R. Chap. V.
In a rather lengthy opinion the trial court held, in substance, that to protect the inmate against self-incrimination which might arise in any disciplinary hearing, the inmate should have (1) an adequate opportunity to consult counsel prior to the proceeding; (2) a prison employee to assist the inmate designated pursuant to section 253.2 of the New York State Code of Rules and Regulations (N.Y.S.C.R.R.), Chapter V, Volume 7; (3) presence of counsel at the initial meeting between inmate and the designated employee counsel to discuss and determine investigatory procedures; (4) a copy of the employee's written investigation report; and (5) counsel present during the hearing to consult with the inmate. The Court limited these safeguards by declaring that such counsel was not to have leave to "conduct his own personal investigation within the confines of the prison" or "to cross-examine witnesses nor to call witnesses in addition to those interviewed by the hearing officer."
In short, the Court held that: "To condone a procedure whereby an inmate goes into those proceedings uninformed or ill advised as to the dangers involved, then makes an incriminating statement and is left with the sole remedy of a pretrial suppression hearing, appears to this Court to be inconsistent with the requirements of due process when received in the context of the present situation." Having satisfied itself that counsel was required, the Court granted the right, subject to certain limitations. The trial court concluded that the "defendants are permanently enjoined from conducting any and all disciplinary hearings concerning charges against inmates arising from their claimed participation in the events at Attica between September 9 through 13, 1971, inclusive, unless and until such inmates are provided the assistance of retained or appointed counsel to act in the capacity detailed in this opinion." The court, noting our en banc decision in Sostre v. McGinnis, 442 F.2d 178 (2d Cir.), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 (1971), 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972), qualifies its opinion with the caveat that it "should not be considered as holding that the right to counsel is required in all cases of prison disciplinary proceedings."
The case now comes to us on appeal both by plaintiffs who inveigh against the limitations placed by the trial court on the "due process safeguards" that were granted and by defendants who object to that portion of the court's opinion which grants the prisoners the assistance of counsel.
Because it is not known at this time what, if any, charges may be leveled against these particular inmates, the District Court's opinion must, of necessity, have been somewhat hypothetical in character. The Court stated:
Although the services thus provided may afford the inmate an alternative means of establishing a defense to the disciplinary charge, it does little to protect him from self-incrimination, either through ignorance or otherwise, as far as possible criminal charges of murder, kidnaping and the like which may flow from his involvement in the September revolt.
During the course of those disciplinary hearings, there must certainly come a time when a determination has to be made concerning what statements on his part may or may not be incriminating and what conduct on his part may or may not be consistent with a defense to the potential criminal charges presently under investigation by the special grand jury. These are determinations not ...