author: GOLDBERG, Circuit Judge: BROWN, Chief Judge COLEMAN, Circuit Judge

text:
    John SANDS, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellant. James E. BAKER et al., Petitioners-Appellants, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee. Guadalupe GUAJARDO, Jr., Plaintiff-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Defendant-Appellant. Guadalupe GUAJARDO, Jr., Petitioner-Appellant, v. C. L. McADAMS, Warden, Wynne Unit, Texas Department of Corrections, Respondent-Appellee.
    Nos. 73-1192, 72-2471, 72-3351 and 73-1497.
    United States Court of Appeals, Fifth Circuit.
    Dec. 26, 1973.
    Certiorari Denied May 13, 1974.
    See 94 S.Ct. 2403.

      Robert L. Shevin, Atty. Gen., Daniel S. Dearing, Chief Trial Counsel, Dept. of Legal Affairs, Civil Div., Tallahassee, Fla., for Louie L. Wainwright.
    James M. Russ, Michael F. Cycmanick, Orlando, Fla., Jack Greenberg, Stanley A. Bass, New York City, for John Sands.
    James De Anda, Philip Kent Maxwell, Corpus Christi, Tex., Frances T. Cruz, Houston, Tex., Mario Obledo, Alice Daniel, William Bennett Turner, San Francisco, Cal., for James E. Baker, Coy Ray Campbell, Sam Bernard, Jr., and Fred Arispe Cruz.
    Crawford Martin, Atty. Gen., W. Barton Boling, Asst. Atty. Gen., Austin, Tex., for W. J. Estelle in No. 72-2471.
    John W. Clarke, Jr., Dallas, Tex., for American Bar Ass’n, amicus curiae.
    John L. Hill, Atty. Gen., Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for W. J. Estelle in No. 72-3351.
    Richard J. Trabulsi, Jr. (Court-appointed), Harry Reasoner, Houston, Tex. (Court-appointed co-counsel), for Guadalupe Guajardo, Jr., in Nos. 72-3351 and 73-1497.
    Jack Greenberg, Stanley A. Bass, New York City, amicus curiae.
    John L. Hill, Atty. Gen., Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., E. Ray Taylor, Jr., Asst. U. S. Atty., Atlanta, Ga., for C. L. McAdams.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM, RONEY and GEE, Circuit Judges.

       Senior Circuit Judge Ingraham sat as a member of the original panel in Cause No. 72-2471, Baker v. Beto and under Allen v. Johnson, 5th Cir., 1968, 391 F.2d 527, he participated in the hearing and decision of the Baker case. Judge Ingraham has not participated in any of the other cases.

   GOLDBERG, Circuit Judge:

I.

These appeals, all involving the rights of inmates in state prisons, are consolidated for opinion purposes. They were argued consecutively before the Court sitting en banc. In Sands v. Wainwright, No. 73-1192, and in Baker v. Estelle, No. 72-2471, we were called upon to determine whether the procedural safeguards afforded by the Florida Division of Corrections and by the Texas Department of Corrections in in-prison disciplinary proceedings meet the due process requirements of the United States Constitution. Sands v. Wainwright and Guajardo v. McAdams, No. 73-1497, raise the issue of what procedural safeguards are constitutionally required before subjecting an inmate to administrative segregation. Baker v. Estelle and Guajardo v. Estelle, No. 72-3351, involve censorship of correspondence between inmates and attorneys. And in Guajardo v. Estelle we were asked to determine the constitutionally permissible scope of prison officials’ authority to read and censor all inmate mail. All four of these cases raise issues of broad application and of great constitutional significance—issues that have drawn nationwide attention from courts, commissions, and commentators.

Appropriately in light of these momentous issues, litigants and lawyers by the score, from as far away as New York and San Francisco, boarded the federal train to begin their journey toward justice. For some of the lawyers and all of the litigants this journey began with the filing of complaints more than two and a half years ago. Each had his federal ticket stamped and validated by a federal conductor at the district depot. As the train approached the en banc terminal, all of the parties were hopeful that their long journey was coming to an end.

Nevertheless, though able advocates had argued and reargued the great constitutional questions, at the last moment the parties found themselves sidetracked by a curious federal jurisdiction statute, 28 U.S.C. § 2281, which requires that a three judge district court be convened whenever an injunction is sought against enforcement of a State statute. Regrettably, the command of Section 2281 leaves us no alternative but to send our litigants back to the district depot to have their federal tickets stamped and validated by three conductors instead of one. We must vacate the judgments of the district court in each of the four cases and remand for further proceedings leading to the convening of three-judge district courts. Because we have been detained at the jurisdictional gate, we do not reach the merits of the due process and mail censorship issues.

II.

Our decision to remand these eases for consideration by three-judge district courts has been a difficult one. Section 2281 is written in deceptively simple language:

§ 2281. Injunction against enforcement of State statute; three-judge court required
An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.

Courts have troubled over its application, however, since the statute was enacted more than 60 years ago in the wake of Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, and other eases in which federal district judges had peremptorily issued orders striking down state enactments. E. g. Raymond v. Chicago Union Traction Co., 1907, 207 U.S. 20, 28 S.Ct. 7, 52 L.Ed. 78.

As Professor Currie has noted, “the three-judge provisions, despite their bland and technical phrasing, are products of battles between competing political forces over four persistent and significant issues: judicial review, national supremacy, sovereign immunity, and the use of injunction.” Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1 (1964). Correspondingly, competing judicial forces have interacted both to expand and to narrow the application of the statute, with the result that the present rules for appellate review of whether a three-judge court was required have become “so complex as to be virtually beyond belief.” American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts 332 (Official Draft, 1969).

The Supreme Court has indicated that it views the three-judge court provision as “a serious drain upon the federal judicial system,” Phillips v. United States, 1941, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800, 804. The Court has therefore directed that the statute be narrowly construed:

The history of [the three-judge court statute] . . ., the narrowness of its original scope, the piecemeal explicit amendments which were made to it . . ., the close construction given the section in obedience to Congressional policy . . ., combine to reveal [the three-judge court statute] not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such.

Id., 312 U.S. at 250-251, 61 S.Ct. at 483, 85 L.Ed. at 804-805. See also Board of Regents v. New Left Education Project, 1972, 404 U.S. 541, 545, 92 S.Ct. 652, 30 L.Ed.2d 697, 702; Allen v. State Board of Elections, 1969, 393 U.S. 544, 561, 89 S.Ct. 817, 22 L.Ed.2d 1,15.

In Board of Regents v. New Left Education Project, supra, the Supreme Court emphasized a second limiting doctrine—that a three-judge court is required only when the statute or regulation in question is of statewide significance :

Such a court is required where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy. But a single judge, not a three-judge court, must hear the case where the statute or regulation is of only local import. . Thus, the “term ‘statute’ in § 2281 does not encompass local ordinances or resolutions,” . . . nor does it include a state statute having only a local impact, even if administered by a state official.

404 U.S. at 542-543, 92 S.Ct. at 653-654, 30 L.Ed.2d at 700. See also Moody v. Flowers, 1967, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643; Rorick v. Board of Commissioners, 1939, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242.

A third narrowing principle enunciated by the courts is that a three-judge court is required only when injunctive relief is sought. In other contexts the Supreme Court has indicated that a declaratory judgment ordinarily would interfere with and disrupt state proceedings just as much as would an injunction. E. g., Samuels v. Mackell, 1971, 401 U.S. 66, 72, 91 S.Ct. 764, 27 L.Ed.2d 688, 693. Nevertheless, when only declaratory relief is sought, the three-judge court procedure generally need not be invoked. In Kennedy v. Mendoza-Martinez, 1963, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, the Court held that a three-judge court was not required to hear claims that certain provisions of the Nationality Act of 1940 were unconstitutional:

Whether an action solely for declaratory relief would under all circumstances be inappropriate for consideration by a three-judge court we need not now decide, for it is clear that in the present case the congressional policy underlying the statute was not frustrated by trial before a single judge. The legislative history of § 2282 and of its complement, § 2281, requiring three judges to hear injunctive suits directed against federal and state legislation, respectively, indicates that these sections were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order. .
The present action, which in form was for declaratory relief and which in its agreed substance did not contemplate injunctive relief, involves none of the dangers to which Congress was addressing itself. The relief sought and the order entered affected an Act of Congress in a totally noneoereive fashion. There was no interdiction of the operation at large of the statute. It was declared unconstitutional, but without even an injunctive sanction against the application of the statute by the Government to Mendoza-Martinez. Pending review in the Court of Appeals and in this Court, the Government has been free to continue to apply the statute. That being the case, there is here no conflict with the purpose of Congress to provide for the convocation of a three-judge court whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court’s order can be obtained.

372 U.S. at 154-155, 83 S.Ct. at 560-561, 9 L.Ed.2d at 652-653. The decisiveness of this distinction between injunctive and declaratory relief was highlighted by the Second Circuit in Nieves v. Oswald, 2 Cir. 1973, 477 F.2d 1109. In Nieves inmates at the Attica Correctional Facility sought injunctive relief against the holding of disciplinary hearings and the imposition of punishment without certain procedural safeguards. The Second Circuit remanded for consideration by a three-judge district court, but indicated that if the inmates had sought only declaratory relief, no three-judge court would have been required. 477 F.2d at 1115 n. 15.

A final limitation on the application of § 2281 is the rule that a three-judge court need not be convened when either the constitutional attack on the State statute or regulation is insubstantial, Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152, or the constitutional defense is frivolous, Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512. This rule is not to be used lightly, however:

A claim is insubstantial only if “its unsoundness so clearly results, from, the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.”

Goosby v. Osser, 1973, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36, 42, quoting Ex parte Poresky, supra, 290 U.S. at 32, 54 S.Ct. 3. As the Second Circuit has suggested, “Congress could not have intended to require three judges to be assembled when decision could not possibly go in any manner save one.” Utica Mutual Ins. Co. v. Vincent, 2 Cir. 1967, 375 F.2d 129, 131 n. 1, cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102. See also Kirkland v. Wallace, 5 Cir. 1968, 403 F.2d 413.

Despite the evident distaste with which the federal courts and the commentators view three-judge court jurisdiction, this series of limiting principles has been counterbalanced by several judicial doctrines that have had an expansive impact. For example, very soon after the enactment of the first three-judge court statute, which like the present § 2281, provided only that an injunction shall not be “granted” by a single judge, the Supreme Court construed the section to mean that a single judge also shall not deny an injunction: “the application for the interlocutory injunction should be heard before the enlarged court, whether the claim of unconstitutionality be or be not meritorious.” Ex parte Metropolitan Water Co., 1911, 220 U.S. 539, 545, 31 S.Ct. 600, 603, 55 L.Ed. 575, 578.

A second expansive doctrine has been the broad interpretation of the language “State statute ... or . . . order made by an administrative board or commission acting under State statutes.” In Phillips v. United States, supra, the Supreme Court said that to trigger the three-judge court procedure “requires a suit which seeks to interpose the Constitution against enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an ‘administrative board or commission.’ ” 312 U.S. at 251, 61 S.Ct. at 483, 85 L.Ed. at 805. Later, the Court added: “In our view the word ‘statute’ in [the three-judge court provision] is a com pendious summary of various enactments, by whatever method they may be adopted, to which a State gives her sanction. . . . ” American Federation of Labor v. Watson, 1946, 327 U.S. 582, 592-593, 66 S.Ct. 761, 766, 90 L.Ed. 873, 880. Thus, § 2281 has been held to apply to a suit by prison inmates seeking an injunction against the enforcement of certain rules adopted by the California Director of Corrections, Gilmore v. Lynch, 9 Cir. 1968, 400 F.2d 228, cert. denied, 393 U.S. 1092, 89 S.Ct. 854, 21 L.Ed.2d 783, on remand, N.D.Cal.1970, 319 F.Supp. 105, aff’d sub nom., Younger v. Gilmore, 1971, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142, and in Nieves v. Oswald, supra, the Second Circuit held that a challenge to prison regulations “sufficiently implicates well-considered state policy of state-wide application to require three-judge court adjudication of the claim for injunctive relief.” 477 F.2d at 1114.

A third amplifying principle requires that a three-judge court be convened if the plaintiff attacks the constitutionality of the statute as applied to him, even if it is conceded that the statute in general is valid. See Department of Employment v. United States, 1966, 385 U.S. 355, 87 S.Ct. 464, 17 L.Ed.2d 414; Query v. United States, 1942, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616; Ex parte Bransford, 1940, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249. Determination of how and when this principle operates, however, involves delicate factual analysis on a case-by-case basis. See C. Wright, Law of Federal Courts 190 (1970); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 37-50 (1964).

Perhaps most significant in the rapid expansion in the number of the three-judge courts is the interpretation of § 2281 as a jurisdictional statute. An appellate court must, on its own motion, remand a case for trial by a three-judge court if it believes that a single judge should not have heard the case. See Kennedy v. Mendoza-Martinez, 1963, 372 U.S. 144, 153, 83 S.Ct. 554, 559, 9 L.Ed.2d 644, 652. For example, in Borden Co. v. Liddy, 8 Cir. 1962, 309 F.2d 871, the court of appeals raised the three-judge issue sua sponte and remanded the case over the protest of both parties.

III.

Having set forth this panoply of conflicting doctrines and declarations, we now examine the facts of the four cases before us to explain why, reluctantly, we must remand for consideration by three-judge district courts.

No. 73-1192—SANDS v. WAINWRIGHT

This is an appeal by defendant, Director of the Florida Division of Corrections [hereinafter, “Florida” or “the State”], from a decision of the United States District Court for the Middle District of Florida, declaring Florida’s prison disciplinary procedures constitutionally insufficient. Plaintiff Sands had filed a pro se, handwritten petition, which he characterized as a “writ for habeas corpus for relief and full compensation.” The district court, however, treated the petition as a civil complaint pursuant to 42 U.S.C. § 1983, alleging violations of Sands’ civil rights; the court granted relief on that basis.

The record in Sands discloses no mention of the three-judge court issue at trial by either party or by the district judge. The question has been posed to this Court on appeal in a most peculiar fashion. Counsel for plaintiff Sands, who prevailed below on the merits, now contend that the single district judge who granted their client such extensive relief was without jurisdiction to provide that relief. On the other hand, the State, which lost below on the merits and for whose protection the three-judge court requirement was enacted, argues on this appeal that the single district judge acted within his jurisdiction and that three judges were not required. Reason and logic would dictate that, since § 2281 was enacted to protect legislative policy from frustration by a single federal judge, and since the State here explicitly condones the failure to convene a three-judge court, the jurisdiction of the district court should be sustained and this Court should proceed to review the decision below on its merits. Reason and logic, however, have always been strangers to the arena of three-judge court jurisdiction. Section 2281 is a jurisdictional statute, Kennedy v. Mendoza-Martinez, supra; and defects of jurisdiction cannot be waived by the parties to a lawsuit. See Jackson v. Ashton, 1834, 8 Pet. (33 U.S.) 148, 8 L.Ed. 898; Mitchell v. Maurer, 1934, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338.

In its Reply Memorandum of Law on Three-Judge Court Issue, Florida urged two reasons for upholding the jurisdiction of the single district judge in Sands: 1) injunctions against further enforcement of State statutes or regulations were neither sought by plaintiff nor issued by the district court; and 2) the Florida regulations in question were promulgated by one man rather than by an “administrative board or commission.” Having studied the record in this case and decisions in related cases, we find the State’s first contention inaccurate and its second contention irrelevant.

The record demonstrates clearly that plaintiff Sands did seek an injunction against the enforcement of State regulations adopted pursuant to statutory authorization, and that the district judge issued such an injunction. Pursuant to Florida Statutes § 945.21, F.S.A., the Division of Adult Corrections of the Florida Department of Health and Rehabilitative Services adopted, as of December 1, 1971, certain Administrative Rules and Regulations governing the Division. Chapter 10B-3.06 of the Rules and Regulations governs “Discipline”; it sets forth, inter alia, certain rules of conduct, punishments that may be imposed by a disciplinary committee, and procedures that must be followed in imposing punishment for violation of the rules. Regarding disciplinary proceedings, Chapter 10B-3.06 provides:

(3) Upon any violation by an inmate of such rules or regulations, detailed written report shall be made by the employee or employer who have knowledge of such violation. Said report shall be investigated and forwarded to the designated committee. The committee shall hold a hearing with the inmate present to determine whether or not such inmate is guilty of such violation. The committee may call before it any persons having knowledge of the violation, or may postpone action pending further investigation. The Committee shall make a written report to the superintendent of its findings together with its recommendations for punishment of the inmate, if any. The superintendent may approve, disapprove, or modify the findings or recommendations of the committee or may refer the matter for further investigation and shall so indicate on said written report. The written report together with the approval, disapproval, or modification of the superintendent shall then be forwarded to the Director who may approve, disapprove, modify the terms thereof or refer for further investigation. Copies of the written report shall be maintained in the inmate’s record jacket and shall also be forwarded to the Florida Parole and Probation Commission.

On the basis of Chapter 10B-3.06 and other official documents, pre-trial stipulations, and' testimony at trial, the district court entered the following specific findings of fact:

1. An inmate confined in administrative segregation status is not necessarily afforded a hearing, notice or any other rights whatsoever concomitant with his placement in such status.
4. An inmate charged with an offense in a disciplinary report has no right to
a. present evidence,
b. call witnesses in his behalf,
c. confront his accuser,
d. confroht his accuser’s witnesses,
e. counsel or counsel substitute,
f. cross-examine adverse witnesses,
g. a public hearing,
h. an appeal,
i. invoke a privilege against self-incrimination, or
j. a record of the proceedings.
5. An inmate charged with an offense in a disciplinary report has no meaningful protective devices available to him that will insure
a. that he will receive a fair hearing at a meaningful time and in a meaningful manner, or
b. that he will be heard by an impartial fact finder and decision maker, or
c. that he will receive a decision based on the evidence, or
d. that there will be a record sufficient to justify the disciplinary committee action.

In his initial pro se complaint, plaintiff Sands ineloquently but unmistakably sought to enjoin further enforcement of the regulations as they were applied. Sands alleged that, by denying him an opportunity to present witnesses in his own behalf, or to cross-examine the witnesses against him, or to have counsel . for his defense, corrections officials were depriving him of his constitutional rights. Record, Vol. I, Document No. 2, at 16-17. He asked inter alia, “That the Respondent should be ordered to give Petitioner a trial with witnesses be [sic] present for and against Petitioner, and a [sic] inpartial [sic] judge shall determine the case.” Id. at p. 23. Although the court would not have had to declare the statute or regulations unconstitutional on their face in order to grant the relief requested by Sands, it would have had to declare the regulations unconstitutional as applied and to enjoin their further enforcement unless additional procedural safeguards were provided.

Indeed, this is exactly the course the district court took. In its Order and Opinion of Court, filed January 5, 1973, the district court granted a “declaratory judgment” setting forth the minimum procedures required by the Constitution and finding that the procedures provided by the Florida Division of Corrections did not meet those standards. That the true impact of the court’s judgment was injunctive, however, is evident from its Order filed less than a week later, on. January 11,1973:

ORDER

It is, sua sponte,

ORDERED:

That implementation of this Court’s order dated January 5, 1973, shall occur on Tuesday, January 23,1973.

Record, Vol. II, Document No. 30. In its supplementary Order, filed the same day, the district court explained: “Thus, the Division of Corrections has in effect been allowed a period of 17 days to implement the requirements discussed in the Court’s order of January 5, 1973.” Record, Vol. II, Document No. 32. Thus, although judicial efficiency and the interests of all parties involved might best be served by sustaining the jurisdiction of the single district judge and by granting review on the merits by the en banc Fifth Circuit, we are forced to conclude that the single district judge has granted exactly the kind of relief § 2281 has proclaimed must be “determined by a district court of three, judges.”

The State’s second proposed ground for avoiding the mandate of § 2281 is that Florida’s prison regulations were promulgated by one man rather than by “an administrative board or commission.” The distinction Florida asks this Court to make was demonstrated starkly at oral argument:

JUDGE SIMPSON: Is this the basis of your argument, Mr. Dearing— that, if the legislature had delegated this power to a board of three people, we would have a three-judge case, but since they delegated it to one man we do not? Is that what you’re telling us?
MR. DEARING: [counsel for the State]: Yes, Your Honor.

This distinction has been rejected explicitly by the Ninth Circuit, whose finding of three-judge court jurisdiction was vindicated by the Supreme Court, Gilmore v. Lynch, supra. To the contention that § 2281 was inapplicable because the California regulations in question were promulgated by one man (the State Director of Corrections), the Ninth Circuit responded: “The regulation here is statewide in its application and is as effective and authoritative in its establishment of state policy as if it had been announced by a board of more than one member.” 400 F.2d at 230. We must give the same response here to the State of Florida. At oral argument, counsel for the State conceded that the Florida prison regulations are not within the exception enunciated in Board of Regents v. New Left Education Project, supra, but are of statewide application:

MR. DEARING: The Division of Corrections regulations apply . . . throughout the State of Florida to all centers of incarceration, whether it be maximum security all the way down to road camps.

Sands v. Wainwright meets all of the tests for three-judge court jurisdiction under § 2281. Neither of the arguments offered by the State,- and none of the narrowing principles enunciated by the courts, can save these litigants from yet another trial before they are awarded the ultimate decision on the merits they began seeking on May 12,1971.

No. 72-2471—BAKER, et al. v. ESTELLE

Plaintiffs are four inmates of the Texas Department of Corrections (TDC). They brought this civil action under 42 U.S.C. § 1983, on their own behalf and, pursuant to Fed.R.Civ.P. Rule 23, on behalf of the class of TDC prisoners affected by the policies, practices, or acts of Texas prison officials challenged in this case. In the district court the inmates sought declaratory and injunctive relief, contending: 1) that prison disciplinary procedures are constitutionally inadequate in that those procedures subject inmates to solitary confinement and loss of good time without due process of law, and 2) that the TDC practice of reading and censoring attorney-inmate correspondence is unconstitutional.

This case has all the earmarks of a suit requiring consideration by three judges. Unlike Sands, no doubt arises here that the relief sought is injunctive. If the relief sought had been granted, the Texas Department of Corrections would have been compelled to alter substantially its entire method of operation as regards prison disciplinary proceedings. Both the 1953 and the 1973 Rules and Regulations of the Texas Department of Corrections, and the statute pursuant to which they were promulgated, govern all institutions in the state penitentiary system—some fifteen units in all—and thus are clearly “statewide” in application. Cf. Board of Regents v. New Left Education Project, supra. That the constitutional issues raised were substantial demands no more proof than to remember that this Court voted to hear the case en banc before a panel opinion was published. See also cases and authorities cited at footnote 1, supra.

Nevertheless, plaintiffs argue that the single district judge did have jurisdiction to decide this case, because their complaint did not seek to enjoin the enforcement of any State statute or regulation :

Here, the complaint made no mention of any regulation whatever and did not seek, by way of relief, an injunction against the enforcement of any regulation. The prayer of the complaint sought, and appellants now seek, a deelatory judgment that certain prison practices violate appellants’ constitutional rights, an injunction against severe disciplinary punishments without procedural due process and an injunction against “reading, censoring, copying, withholding or delaying” prisoner-attorney mail. In other words, this case involves the constitutionality of certain prison practices, not state-wide regulations.

Appellants’ Memorandum on Three-Judge Court Issue, at 2-3 (emphasis in original).

Plaintiffs’ attempted distinction between “practices” and “regulations” cannot be sustained; in this case, it is a distinction without a difference. No party has contended that Texas prison officials are acting outside the scope of their statutory authority in carrying on these allegedly unconstitutional practices. The “practices” whose enforcement the inmates seek to enjoin are, in reality, the Rules and Regulations of the Texas Department of Corrections, as applied. Plaintiffs claim that no particular paragraph or section of those Rules and Regulations—either the 1953 version in effect at the time this litigation was initiated, or the July 9, 1973, version currently in effect—is constitutionally offensive, and that no injunction is sought against any such paragraph or section. The entire thrust of plaintiffs’ argument, however, is that the Rules and Regulations, as a whole and as applied, are constitutionally deficient standing alone. More complete and more specific regulations must be mandated in order to assure that the present “practices” will not be continued.

Plaintiffs seek more than hollow symbolic relief. If a federal court were to uphold the constitutional arguments by plaintiffs’ counsel throughout this litigation, that court would have to insist that new regulations be instituted and that further enforcement of present regulations, unmodified, be enjoined. This is exactly the type of relief § 2281 reserves for district courts of three judges.

No. 72-3351—GUAJARDO, et al, v. ESTELLE

Plaintiff Guadalupe Guajardo, Jr., filed suit pursuant to 42 U.S.C. § 1983, on behalf of himself and other inmates of the Texas Department of Corrections (TDC), challenging TDC’s practice of reading and censoring inmate correspondence. The censorship policies of which plaintiffs complained were being carried out under the 1953 Rules and Regulations of the Texas Department of Corrections; plaintiffs attacked a number of those 1953 Rules as unconstitutional either on their face or as applied. After several days of hearings before the United States District Court for the Southern District of Texas, the district judge, at the request of Dr. Beto, who was then director of TDC, recessed the proceedings to give TDC an opportunity to present revised regulations to the court. Dr. Beto presented the district court a revised set of Rules and Regulations, dated July 10, 1972, including new guidelines for inmate correspondence. Hearings were resumed, and on September 25, 1972, the district court entered its Memorandum and Order in Guajardo v. Beto, which the court had consolidated with Guajardo v. McAdams. The court’s Memorandum and Order is reported at 349 F.Supp. 211.

In the consolidated cases, the court entered a twelve-paragraph decree of relief. 349 F.Supp. at 221-222. Eleven of the twelve paragraphs dealt with inmate correspondence; their effect was to modify eight of the revised 1972 Rules and to strike four others in their entirety. The district court concluded this decree by ordering: “The Texas Department of Corrections is hereby enjoined from following any procedure in conflict with the above outlined principles. . . .’’As each of the 1972 TDC Rules and Regulations constituted “an order made by an administrative board or commission acting under State statutes,” see Tex.Rev.Civ. Stat.Ann., Art. 6166j, footnote 7 supra, the Order of the single district judge below is in direct contravention of the mandate of 28 U.S.C. § 2281.

Appointed counsel for plaintiffs, both orally and in their excellent brief to this Court on the three-judge court issue, have argued forcefully that three judges were not required because: 1) at the outset of the litigation the trial court was not asked to enjoin the operation of a State statute or administrative order; and 2) the regulations at issue are not of statewide importance. Regretfully, we are unable to sustain either argument.

The first contention is based upon the fact that Plaintiffs originally sought only to have “policies and practices” enjoined; they were questioning not specific regulations, but the results obtained through use of the very general 1953 Rules and Regulations. This is virtually the same argument as that advanced by plaintiffs in Baker v. Estelle, supra, and it must fail for the same reasons. Moreover—even assuming arguendo that this case at its outset did not call for three judges—once the more specific 1972 Rules and Regulations were introduced and it became clear that specific rules would have to be enjoined in order to provide the requested relief, the district judge came under an obligation to take the appropriate steps toward convening a three-judge court. The general rule that the determination of three-judge court status is to be made on the basis of the allegations of the complaint, Nieves v. Oswald, supra, 477 F.2d at 1112, must give way to the jurisdictional command of § 2281.

Plaintiffs’ second argument—that the regulations are not of statewide importance—is not persuasive. Plaintiffs rely on Board of Regents v. New Left Education Project, supra-, that reliance is misplaced, however. The Supreme Court held in New Left that the regulations of the Board of Regents were not of statewide applicability because they did not govern all State colleges and universities; but the TDC Rules and Regulations do apply to all State prison units.

No. 73-1497—GUAJARDO v. McADAMS

This case arose out of and during the pendency of Guajardo v. Beto, and the two suits were consolidated at trial. The substantive issue on this appeal was the constitutionality of the TDC practice of placing certain inmates in a segregated status for non-punitive reasons without providing a hearing.

As regards the three-judge court issue, the two Guajardo cases come to the en banc Fifth Circuit in almost identical procedural postures. The only difference lies in the fact that the district court reacted more favorably to the TDC’s revised regulations on administrative segregation than to its mail censorship regulations; with but one exception, the court approved the new procedures relating to administrative segregation. This distinction has no effect, however, on whether a three-judge court should have been convened. Section 2281 does not differentiate between injunctions against one regulation and injunctions against several regulations. Moreover, the obligation to call for a three-judge court fell upon the district judge when he became aware that, in order to grant the relief requested, the court would have to issue the type of injunction prohibited by § 2281; the obligation is not contingent upon plaintiffs’ ultimate success or failure. See Ex parte Metropolitan Water Co., supra.

IV

We reach our decision today without joy or celebration. As we have noted, the outpouring of legal and judicial energy in these cases has been overwhelming. That we must instruct the litigants and the courts involved to begin anew is a victory for no one.

Had we been at liberty to decide the three-judge court issue by applying the rationale of § 2281 to the facts and equities of the cases before us, we would have reached a different result. The origin and entire history of three-judge court provisions, as applied to State statutes, demonstrate that their purpose is “procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy.” Phillips v. United States, supra, 312 U.S. at 251, 61 S.Ct. at 483, 85 L.Ed. at 805. In two of the cases presently before us —Sands and Baker—the State raised not the slightest objection in the court below to the authority of a single federal judge to reach a decision on the merits. In the two Guajardo cases the State took the position that jurisdiction lay with a three-judge court only after the trial judge had requested briefs on the issue; the State made no objection to the court’s failure to rule on the three-judge court question. The State of Florida has argued in the Sands ease that a three-judge court should not be convened. Furthermore, even if Florida or Texas had found single-judge disposition offensive, the type of review afforded here—by fifteen circuit judges, including three from Florida and four from Texas—would seem to assure greater protection against improvident action than even a three-judge district court. Unfortunately, the technical and jurisdictional nature of § 2281 does not permit us to incorporate equitable considerations into our decision.

We are not unmindful that this result may raise the haunting specter of hundreds or even thousands of three-judge courts, convened to hear civil rights suits brought by prison inmates and other classes of litigants. If that prospect becomes reality, with its accompanying burden on judicial resources, we can only plead that we were powerless to obviate it. We have taken no bold new steps today, but have merely followed in the footsteps of our predecessors. The statutory strait jacket and Supreme Court commands leave us no maneuver to unshackle these cases from the outmoded confines of a § 2281 court.

The decisions of the respective district courts in No. 73-1192, No. 72-2471, No. 72-3351, and No. 73-1497 are vacated and remanded for appropriate proceedings under 28 U.S.C. § 2284, leading to the convening of three-judge district courts.

Vacated and remanded.

BROWN, Chief Judge

(concurring):

Concurring fully in - the opinion I am paraphrasing Judge Friendly’s juridical quip that the opinion is bound to be right because it is so wrong. Right in the sense that this is what the statute commands. Wrong in the sense of the administrative monstrosity such cases would bring about with three Judges sitting patiently while hearing run-of-the-mill factual recitations and many conflicts from the scores of witnesses appearing in airing their grievances about prison operations.

But from the bad often comes good and it just may be that this result will stimulate the House into joining the Senate in S.663 and S.271 (which repealed 28 U.S.C.A. §§ 2281, 2282) by which the requirements of a three-judge court are substantially eliminated.-

COLEMAN, Circuit Judge

(concurring) :

I concur in the result.

      . On due process in prison disciplinary and administrative segregation proceedings, see, e. g., Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652; Nolan v. Scafati, 1 Cir. 1970, 430 F.2d 548; Sostre v. McGinnis, 2 Cir. 1971, 442 F.2d 178, cert. denied, 1972, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, and Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254; United States ex rel. Miller v. Twomey, 7 Cir. 1973, 479 F.2d 701; McDonnell v. Wolff, 8 Cir. 1973, 483 F.2d 1059; Pearson v. Townsend, D.S.C.1973, 362 F.Supp. 207; United States ex rel. Neal v. Wolfe, E.D.Pa.1972, 346 F.Supp. 569; Landman v. Royster, E.D.Va. 1971, 333 F.Supp. 621; Clutchette v. Procunier, N.D.Cal.1971, 328 F.Supp. 767; National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 2.12 (1973); S. Krantz, et al. (Center for Criminal Justice, Boston University School of Law), Model Rules and Regulations on Prisoners' Rights and Responsibilities (1973); Millemann, Prison Disciplinary Hearings and Procedural Due Process — The Requirement of a Full Administrative Hearing, 31 Md.L.Rev. 27 (1971); Turner, Establishing the Rule of Law in Prisons: A Manual for Prisoners' Rights Litigation, 23 Stan.L.Rev. 473 (1971); Note 50 Texas L.Rev. 155 (1971).
      On prison interference with inmate mail, see, e. g., Goodwin v. Oswald, 2 Cir. 1972, 462 F.2d 1237; Smith v. Robbins, 1 Cir. 1972, 454 F.2d 696, Evans v. Moseley, 10 Cir., 455 F.2d 1084, cert. denied, 1972, 409 U.S. 889, 93 S.Ct. 160, 34 L.Ed.2d 146; Barnett v. Rodgers, 1969, 133 U.S.App.D.C. 296, 410 F.2d 995; Procunier v. Martinez, N.D. Cal.1973, 465 F.Supp. 1092, prob. juris. noted, 1973, 412 U.S. 948, 37 L.Ed.2d 1000; Lamar v. Kern, S.D.Tex.1972, 349 F.Supp. 222; National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 2.17 (1973); Stern, Prison Mail Censorship: A Nonconstitutional Analysis, 23 Hast.L.J. 995 (1972); Comment, Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1971); Recent Cases, 86 Harvard L.Rev. 1607 (1973).

      . The district court held, inter alia: 1) that confinement in both punitive and administrative segregation and the loss of any type of gain time constitute “grievous losses”; 2) that an inmate’s interest in avoiding wrongful imposition of such grievous losses outweighs the governmental interest in summary adjudication; 3) that prior to the imposition of these grievous losses prison authorities must conduct a hearing “appropriate to the nature of the loss”—including ten specific procedural safeguards when the loss is confinement in disciplinary segregation or loss of gain time, and three less restrictive requirements when the loss is administrative segregation; and 4) that, acting under its present rules and regulations, Florida was not providing all of these constitutionally mandated procedures.

      . On September 27, 1973, Florida filed a Memorandum of Law on Three-Judge Court Issue, arguing that a three-judge court should have been convened. In its Reply Memorandum, filed October 9, 1973, the State reversed its position, asserting that

        “[cjareful research and further consideration of this important question leads Appellants to believe their initial response drew inaccurate conclusions of law.”

      . 945.21 Regulations of the division
      (1) The division is authorized to adopt and promulgate regulations governing the administration of the correctional system and the operation of the division. In addition to specific subjects otherwise provided for herein, regulations of the division may relate to:
      (a) Conduct to be observed by prisoners;
      (b) Punishment of prisoners ;

      . Plaintiff Sam Bernard, Jr. asked that his complaint be dismissed. The other three named plaintiffs have now been released from prison. Because this is a class action, the release of the individual parties does not moot the ease. See Goosby v. Osser, 1973, 409 U.S. 512, 514 n. 2, 93 S.Ct. 854, 856 n. 2, 35 L.Ed.2d 36, 39-40 n. 2, and cases cited therein. The fact of plaintiffs’ release merely serves to highlight the protracted nature of this litigation: complaint was filed March 26, 1971; judgment was entered on March 13, 1972, by the United States District Court for the Southern District of Texas, denying all relief; oral argument was heard before a panel of the Fifth Circuit in December, 1972; before any panel opinion was published the Fifth Circuit voted to rehear the case en banc; oral argument was heard before the Court sitting en banc on October 18, 1973. Until only a few weeks before the en banc hearing, the three-judge court issue had not been raised by any of the parties, by the federal district judge who tried the case, or by any member of the Fifth Circuit panel that heard the case.

      . Of course, the fact that relief was not granted here in no way diminishes the inipact of the § 2281 mandate. Ex parte Metropolitan Water Co., supra.

      . Tex.Rev.Civ.Stat.Ann., Art. 6166j, provides that the Director of Corrections, with the consent of the Texas Board of Corrections, “shall have power to prescribe reasonable rules and regulations governing the humane treatment, training, and discipline of prisoners. ...”

      . The district court apparently asked the parties to submit briefs on the question of whether a three-judge court should be convened. Counsel briefed the issue, but the court never ruled on it.

      . That city and county jails are outside the ambit of TDC Rules does not diminish the statewide importance of those Rules. City and county jails are primarily locally-controlled institutions; they provide no analogy to the 20 four-year state colleges and universities that were outside the coverage of the Regents’ rules in New Left. See Nieves v. Oswald, supra.

      . Even at oral argument on this appeal, the State’s contention that a three-judge court should have been convened apparently arises more from its belief that the law requires this result than from any conviction that justice or the State’s interest would be better served:
      MR. PENA [counsel for the State of Texas] : In our primary briefs we did not raise the issue . . . .We had presented our evidence. We had worked up some great rules, we thought, under the supervision of the [district] court; and we wanted the matters to be settled one way or the other. We did not submit a brief on the three-judge issue until the Court [of Appeals] asked us to. At that time we had to take the position, and we still take the position, that this is a proper three-judge court [case] ....

       In Baker the appeal was heard by sixteen circuit judges, including five from Texas.

      . The present three-judge court statutes have been roundly criticized by legal scholars. Though virtually all have agreed that the law should be modified, no consensus has yet emerged as to what form that modification should take. See, e. g., American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts §§ 1374-1376 and Commentary thereto (Official Draft 1969) [ALI Study] ; Ammerman, Three-Judge Courts: See How They Run'!, 52 F.R.D. 293; Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1 (1964) ; Comment, Reviewing the Grant of a Three-Judge Court, 69 Colum.L.Rev. 146 (1969) ; Comment, The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299 (1963) ; Comment, The Three-Judge Court Reassessed: Changing Roles in Federal-State Relationships, 72 Yale L.J. 1646 (1963).

        At least one area of agreement apparently has been reached, however. As the American Law Institute has observed:
      It has been said that ‘the most obnoxious feature of the entire three-judge scheme’ is the rule that the requirement for three judges is jurisdictional, and that an appellate court on its own motion must remand the case for trial by three judges if it believes that it was error for a single judge to act. ... If the party for whose benefit the three-judge court is required has not asked for such a benefit, and has come to a court of appeals where three judges will pass on the merits of his position, there is no point in sending the matter back to be heard again in the district court.
      ALI Study, supra, at 331 (quoting Currie, supra, 32 U.Chi.L.Rev. 1, 77).

      . The dramatic and much publicized increase in the number of three-judge court hearings in the 1960’s appears to have leveled off since fiscal year 1970. For example, the total number of three-judge cases increased by 44% from 1964 to 1967 and by 70% from 1967 to 1970, but only by 10% from 1970 to 1973. The volume of three-judge court cases—320 in 1973—represented only about 0.-3% of all cases filed in the federal district courts. Administrative Office of the United States Courts, Annual Report of the Director (1973).

      . Gulf Oil Corp. v. Panama Canal Co., 5 Cir., 1969, 407 F.2d 24, 26-27, 1969 A.M.C. 1, 4, n. 3:
      In Lawrence v. United States, 5 Cir., 1967, 378 F.2d 452, 467, we put it this way: “The painstaking opinion by Judge Waterman—painstaking not only in the careful exploration of every conceivable way to find jurisdiction, but also painstaking in the evident sense of trying to find an escape from a painfully unfortunate result —closes all of the doors to the District Court.” See the statement of Judge Friendly in Spanos v. Skouras Theatres Corp., 2 Cir., 1966, 364 F.2d 161, 167: “The compulsion felt by my brothers * * * to reach what seems a palpably unjust result reminds me of Chief Justice Erie’s observation as to the occasional predilection of the best of judges for ‘a strong decision,’ to wit, one ‘opposed to common-sense and to common convenience.’ ”

      . In this Circuit we have had much experience in three-Judge factual cases, especially in Louisiana where credibility choices were close, and in Dreyer v. Jalet, S.D.Tex., 1972, 349 F.Supp. 452, affirmed, 5 Cir., 1973, 479 F.2d 1044, Judge Bue heard prison-based witnesses for over six weeks.


source: Caselaw Access Project

author: WIDENER, Circuit Judge;

license: Public Domain

text:
    Carl Junior HIGGINBOTHAM, Appellee, v. UNITED STATES of America, Appellant.
    No. 73-1342.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 3, 1973.
    Decided Jan. 28, 1974.
    Carleton D. Powell, Atty., Tax Div., U. S. Dept. of Justice (Scott P. Cramp-ton, Asst. Atty. Gen., Meyer Rothwaeks, Elmer J. Kelsey, Attys., Tax Div., U. S. Dept. of Justice, and John A. Field, III, U. S. Atty., on brief), for appellant.
    John T. Kay, Jr., Charleston, W. Va. (Stanley E. Preiser, Preiser & Wilson, John T. Kay, Jr., and Kay, Casto & Chaney, Charleston, W. Va., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge;

This case involves a suit for refund of federal excise taxes on wagering and a counterclaim on account of such taxes filed by the United States for the years 1964 and 1965 in the total amount of $353,082.06. 26 U.S.C. § 4401. The district court held that the applicable statute of limitations governing when assessments for wagering taxes must be made was three years and that the period had expired prior to the date of assessment. The court further held that the provisions of § 6501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 6501(c)(3), providing that if no return is filed an assessment may be made at any time, were inapplicable in this case and, therefore, the assessments were untimely and not enforceable.

Since it relied on Lucia v. United States, 447 F.2d 912 (5th Cir. 1971) and an unreported case in holding § 6501(c)(3) inapplicable, the court obviously reasoned, although it did not so state, that depriving the taxpayer of the right to take advantage of the statute of limitations because he filed no wagering tax return would constitute a constitutionally impermissible punishment. Judgment was entered against the United States and this appeal followed. Because we feel that the shelter provided by the statute of limitations is not a fundamental right the denial of which would constitute a penalty in the constitutional sense on those involved in a criminal activity, we reverse.

The facts are not controverted. On February 6, 1970, the Internal Revenue Service made assessments for federal wagering excise taxes against Carl Junior Higginbotham for each of the months in the years 1964 and 1965. The assessments were based on projections made from records seized by agents of the Intelligence Division of the Internal Revenue Service from the taxpayer in a raid on November 20, 1965. Higginbotham had filed no returns for the tax periods covered by the assessments, claiming in the alternative that he did not engage in the business of accepting wagers or that he feared that the information contained in the returns might tend to incriminate him. The district court, without a hearing, found he did not file returns because he feared the information contained in the returns might tend to incriminate him.

On May 6, 1971, the taxpayer paid $293.50 on the assessment for the monthly period ending July 31, 1964, and on May 14, 1971 he filed a claim for refund. After more than six months had expired after filing the claim, Higginbotham brought this suit for refund. In an amended answer, the United States filed a counterclaim against the taxpayer for the unpaid balance of the assessment in the amount of $352,786.56.

As a general rule, the assessment of any tax imposed by Title 26 of the U. S. Code, including the wagering excise tax, must be made within three years after the tax return is filed. 26 U.S.C. § 6501(a). If no return is filed, however, this three-year statute of limitations does not apply, and the assessment, or collection proceedings in court, may begin at any time. 26 U.S.C. § 6501(c)(3). Noth withstanding this latter provision, the taxpayer here contends that the assessment was untimely, and thus he may not be required to pay the tax. Since the filing of the wagering tax return might tend to incriminate him, relying on Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), he argues that the denial of the defense of the three-year statute of limitations would constitute a constitutionally impermissible punishment. See United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). If the taxpayer is correct in this contention, the assessment would be barred since it was made on February 6, 1970, more than five years after the period in question.

The Supreme Court considered the scope of a taxpayer’s privilege against self-incrimination in two opinions rendered the same day in 1968. In Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), the court found that criminal prosecutions could not be sustained for failing to register and pay the occupational privilege tax because the system of payment created “real and appreciable” hazards of self-incrimination. The court held that the registration and occupational tax provisions could not be employed to punish criminally persons who defended a failure to comply with a proper assertion of the privilege against self-incrimination. Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), involved a defendant who had been convicted for willful failure to pay the wagering excise tax, willful failure to pay the occupational tax, and conspiracy to defraud the United States by evading payment of these taxes. The Supreme Court reversed the convictions, holding that the privilege against self-incrimination afforded a complete defense to criminal prosecutions for noncompliance with federal gambling tax and registration requirements.

More recently, in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), the court again had before it the conflict between the power to tax unlawful activity and the values protected by the taxpayer’s privilege against self-incrimination. The defendant in United States Coin had been convicted of failing to register and pay the federal wagering taxes. Thereafter, the United States instituted forfeiture proceedings to obtain $8,674.00 which he had in his possession at the time of his arrest. The court held that the privilege against self-incrimination was applicable in a civil forfeiture proceeding. The court reasoned:

“The Government’s principal argument (that only criminal proceedings were proscribed, not civil proceedings such as forfeiture) turns upon an exceedingly narrow construction of our decisions in Marchetti and Grosso. In those cases, we took pains to make it clear that the Court in no way doubted the Government’s power to assess and collect taxes on unlawful gambling activities. It was only the method Congress had adopted in collecting the tax that raised the Fifth Amendment question. The statute commanded that gamblers submit special registration statements and tax returns that contained information which could well incriminate them in many circumstances. Because the risk of self-incrimination was substantial, we held that a Fifth Amendment privilege could be raised as a defense to a criminal prosecution charging failure to file the required forms. Since it was only this method of tax collection which was subject to constitutional objection, we indicated that, the Government remained free to collect taxes due under the statute so long as it did not attempt to punish the taxpayer for his failure to file the required documents.

Thus, rejecting the argument that Marchetti and Grosso applied only to criminal sanctions, the court held that “ ‘proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal’ for Fifth Amendment purposes.”

We feel that neither Marchetti, nor Grosso, nor United States Coin & Currency require the result obtained below. Unlike the defendants in Marchetti and Grosso, the taxpayer here is not being prosecuted criminally for his failure to pay either the occupational tax or the wagering excise tax, nor is he being prosecuted for failing to register. The government seeks from Higginbotham only taxes and interest. Neither civil forfeiture nor criminal penalties have been imposed, nor are they sought.

For similar reasons, we feel that United States Coin & Currency is inapposite. The forfeiture statute there involved constituted a penalty upon those asserting a Fifth Amendment privilege since the provisions of the statute itself were intended to penalize only persons significantly involved in a criminal enterprise. In the instant case, the taxpayer urges that the denial of the statute of limitations’ defense constitutes a similar penalty upon the exercise of his Fifth Amendment right. In contrast, however, the provisions of 26 U.S.C. § 6501(c)(3) (the statute of limitations on assessments) apply across the board to the public at' large, to all persons required to pay taxes under Title 26 of the U. S. Code to the federal government. No distinction is made between those who owe ordinary income taxes, for example, and those who owe gambling excise taxes. All are treated alike as, of course, they must under a largely self-enforcing tax system.

The Supreme Court characterized statutes of limitation in Chase ’ Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945). The court thought it significant that these provisions “have come into the law not through the judicial process but through legislation. . . . Their shelter has never been regarded as what now is called a ‘fundamental’ right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.”

We hold that the provision of 26 U.S. C. § 6501(c)(3) providing that assessments may be made at any time in the case of a taxpayer who fails to file a return, as applied to the defendant here, is not a constitutionally impermissible punishment. Arguably, the taxpayer may not be compelled to file a return since to do so involves substantial hazards of self-incrimination. On the other hand, his failure to file tolls the statute of limitations for assessments under § 6501, the same as any other taxpayer assessed under the Internal Revenue Code. Our legal system is “replete with situations requiring ‘the making of difficult judgments’ as to which course to follow. McMann v. Richardson, 397 U.S. [759], at 769, 90 S.Ct. [1441], at 1448 [25 L.Ed.2d 763]. Although a defendant may have a right, even of constitutional dimensions, to follow whatever course he chooses, the Constitution does not by that token always forbid requiring him to choose.”

Nothing is presented to us, or presents itself, in reason or in law, to justify the defendant in avoiding the assessment here on the grounds of the statute of limitations, when an ordinary taxpayer, engaged in a lawful occupation, may not avoid it under what otherwise would be precisely the same set of circumstances. The provisions of § 6501(c)(3) are not pointed at a small or limited class engaged in activity inherently suspect or unlawful, cf. Marchetti, Grosso, United States Coin & Currency, supra; they cover the broad mass of the taxpaying public sustaining the burden of government under every tax imposed by the Internal Revenue Code. So, if the defendant here finds himself a part of the mass, he may not complain. Accord Lucia v. United States, 474 F.2d 565 (5th Cir. 1973) (en banc); contra, Lucia v. United States, 447 F.2d 912 (5th Cir. 1971) (panel).

Accordingly, the decision of the district court that the February 6, 1970 assessment is barred by the three-year statute of limitations is reversed. The order entered December 5, 1972 must be vacated and the case remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

      . No issue has been raised on this appeal as to the taxpayer’s liability under 26 U.S.C. § 4411 for $125 in wagering occupational taxes for the period of January 1, 1964 to June 30, 1966. The sole issue before us is the timeliness of the assessment of wagering excise taxes under 26 U.S.C. §§ 4401 and 6501.

      . The Internal Revenue Code of 1954, 26 U.S.C. § 6501, provides:
      Section 6501. Limitations on Assessment and Collection.

      (a) General Rule.—Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within three years after the return was filed (whether or not such return was
      filed on or after the date prescribed) or, if the tax is payable by stamp, at any time after such tax became due and before the expiration of 3 years after the date on which any part of such tax was paid, and no proceeding in court without assessment for the collection of such shall be begun after the expiration of such period.
      :¡: * * * *
      (c) Exceptions.—
      sjs * !¡: *• sit
      (3) No return.—In the case of failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.
      * * * *

      . The Internal Revenue Code of 1954 provides :
      Section 4401. IMPOSITION OF TAX.
      (a) Wagers.—There shall be imposed on wagers, as defined in section 4421, an excise tax equal to 10 percent of the amount thereof.
      (b) Amount of wager.—In determining the amount of any wager for the purposes of this subehapter, all charges incident to the placing of such wager shall be included; except that if the taxpayer establishes, in accordance with regulations prescribed by the Secretary or his delegate, that an amount equal to the tax imposed by this subchapter has been collected as a separate charge from the person placing such wager, the amount so collected shall be excluded.
      (c) Persons liable for taso.—Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subchapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this subehapter on all wagers placed in such pool or lottery. Any person required to register under section 4412 who receives wagers for or on behalf of another person without having registered under section 4412 the name and residence of such other person shall be liable for and shall pay the tax under this subchapter on all such wagers received by him.

      . It should be noted, parenthetically, that the validity of the gambling excise tax is not here in question. “It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed.” United States v. Sanchez, 340 U.S. 42, 44, 71 S.Ct. 108, 110, 95 L.Ed. 47 (1950). Indeed, in characterizing its earlier decisions dealing with the wagering excise tax, the Supreme Court remarked that “(i)n those cases, we took pains to make it clear that the Court in no way doubted the Government’s power to assess and collect taxes on unlawful gambling activities.” United States v. United States Coin & Currency, 401 U.S. 715, 717, 91 S.Ct. 1041, 1043, 28 L.Ed.2d 434 (1971). See also Washington v. United States, 402 F.2d 3 (4th Cir. 1968), cert. den., 402 U.S. 978, 91 S.Ct. 1641, 29 L.Ed.2d 145 (1971), rehearing den., 403 U.S. 940, 91 S.Ct. 2242, 29 L.Ed.2d 720 (1971).

      . Internal Revenue Code of 1954 §§ 4411, 4412; 26 U.S.C. §§ 4411, 4412.

      . Internal Revenue Code of 1954 § 7302 ; 20 U.S.C. § 7302.

      . 401 U.S. at 717, 91 S.Ct. at 1043.

      . 401 U.S. at 718, 91 S.Ct. at 1043. (Emphasis in original)

      . 325 U.S. at 314, 65 S.Ct. at 1142.

      . McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971).


author: SNEED, Circuit Judge:

text:
    Arline G. KERN and Pacific National Bank of Washington, a national banking association, as executors of the Estate of Albert R. Kern, Deceased, Appellants, v. UNITED STATES of America, Appellee.
    No. 72-1712.
    United States Court of Appeals, Ninth Circuit.
    Feb. 6, 1974.
    Rehearing Denied March 18, 1974.

      Stanley S. Pratt of Gavin, Robinson, Kendrick, Redman & Mays, Yakima, Wash., for appellants.
    Scott P. Crampton, Asst. Atty. Gen., Elmer J. Kelsey, Richard Farber, Meyer Rothwacks, Ann Belanger, U. S. Dept. of Justice, Tax Div., Washington, D. C., Dean C. Smith, U. S. Atty., Spokane, Wash., for appellee.
    Before GOODWIN and SNEED, Circuit Judges, and BURNS, District Judge.

       The Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

SNEED, Circuit Judge:

This is an estate tax case involving the interaction between the community property law of the State of Washington as it relates to the proceeds of life insurance policies and Section 2042(2) of the Internal Revenue Code of 1954. The facts are not disputed; the problem consists of the legal consequences of these facts under Washington law and Section 2042(2).

Albert R. Kern and his wife, Arline G. Kern, were married on January 22, 1928. On January 15, 1958 there was issued by the Northern Life Insurance Company of Seattle, Washington, Policy No. 467-750 in the face amount of twenty thousand dollars naming Albert as the insured and Arline as the beneficiary. The application for this policy reflects that Albert signed as a proposed “insured” and Arline as the “applicant.” The following provision also appeared in the application:

IT IS FURTHER AGREED that the Proposed Insured consents to the insurance herein being applied for and agrees that any policy or policies that may be issued hereunder shall belong to and be subject to the exclusive control and disposition of the applicant or applicants hereunder without further action or consent on the part of the Proposed Insured for any purpose whatsoever.

In addition, Policy No. 467-750 contained a typed endorsement in the policy stating:

It is understood and agreed that application for this policy was made by Arline G. Kern, wife of the Insured, designated as the applicant. It is further understood and agreed that the said applicant is the sole owner of this policy and may receive and exercise every right and privilege thereunder, if she be living, otherwise the Executors, Administrators or Assigns of the said applicant. Under this agreement, it is understood that neither the Insured nor his estate shall have any interest in this policy.

A second policy, Policy No. 505389, on the life of Albert was issued on March 3, 1965, by Northern Life in the full amount -of ten thousand dollars. The application also reflects that Albert signed as the proposed “insured” and Arline as the “applicant.” The application contains the same language set out above that appears in the application for Policy No. 467-750. However no typed endorsement such as was placed on Policy No. 467-750, appears on this 1965 policy.

All the premiums with respect to both policies were paid from community funds. Arline was designated the beneficiary under both policies.

The proceeds of both policies were paid to Arline following Albert’s death on July 15, 1967. The estate tax return prepared with respect to Albert’s estate included one half of the proceeds of each policy in the gross estate, presumably on the ground that the policies were the community property of Albert and Arline. Thereafter, a timely claim for refund was filed seeking to exclude from Albert’s gross estate any amount with respect to these two policies. This claim was disallowed by the Commissioner of Internal Revenue and this suit for the refund was initiated by the executor of Albert’s estate.

The trial court dismissed the complaint of the executors with prejudice on the ground that the policies were community property. We reverse and render judgment with respect to Policy No. 467-750 and reverse and remand for further proceedings with respect to Policy No. 505389. Neither action is intended to preclude further proceedings regarding the extent to which the premiums paid with respect to Policy No. 467-750 and the premiums paid with respect to, or proceeds of, Policy No. 505389 should be included in Albert’s gross estate by reason of Section 2035 of the Internal Revenue Code of 1954. These issues were not reached by the trial court and our action here should not foreclose their consideration on remand.

The proper characterization of each policy is governed by Washington law. Recently this court had the opportunity to describe in general terms the structure of Washington’s community property law. See United States v. Overman, 424 F.2d 1142 (9th Cir., 1970). We recognized that property acquired during marriage was, subject to certain exceptions, community property. The interest of each spouse is an equal, present, and vested right in the community property which is protected from certain acts by the other that would impair it. Each can sell or give his interest to the other during the existence of the community and, upon its termination by the death of a spouse, the interest of such spouse may be subject to testamentary disposition.

More particularly, under Washington law, to establish that property acquired during marriage is not community property it is necessary to show that it was obtained by the acquiring spouse by gift, devise or descent. Any such demonstration must overcome a strong presumption in favor of the community and the burden is upon the party who asserts separate property status to establish it. R.C.W.A. 26.16.010, 26.16.020, 26.16.030; In re Estate of Smith, 73 Wash.2d 629, 440 P.2d 179 (1968); Stokes v. McDowell, 70 Wash.2d 694, 424 P.2d 910 (1967); California-Western States Life Ins. Co. v. Jar-man, 29 Wash.2d 98, 185 P.2d 494 (1947) . While the magnitude of this burden has been described variously, a fair statement is that the evidence sufficient to overcome the presumption must be clear, definite and convincing. State v. Miller, 32 Wash.2d 149, 201 P.2d 136 (1948) ; In re Slocum’s Estate, 83 Wash. 158, 145 P. 204 (1915).

We agree with the trial court’s view that the above-quoted provision appearing in the application for each policy, standing alone, does not meet this standard. A provision on a printed form applicable to any applicant and insured, without regard to their marital status, does not constitute the clear, definite, and convincing evidence necessary to overcome the presumption.

In our view the typewritten endorsement on Policy No. 467-750 is a different matter. While it does not explicitly state that that policy “was intended to be the separate property of Arline G. Kern” and that “all the rights, privileges, and incidents of ownership thereunder are the separate property of Arline G. Kern,” it does describe Mrs. Kern as “the sole owner of this policy.” and expressly precludes any interest in the policy on the part of the Insured or his estate. This, when accompanied by the testimony of Mrs. Kern and the insurance agent who sold the policies, clearly, definitely, and convincingly demonstrates that it was intended that this policy be the separate property of Mrs. Kern.

The contrary conclusion of the trial court was based on the belief that under Washington law the presumption favoring the community in these circumstances could be overcome only by a “separate instrument with the recitation that the property was separate property and not community property, and provision for the specific gifts of the premiums. . . . ” We do pot believe this is an accurate description of the requirements of Washington law. Evidence sufficient to rebut the presumption must be clear, definite, and convincing, but it need not in these circumstances be evidenced by an instrument separate and apart from the insurance policy. No Washington case has been found imposing such a requirement. The cases cited by the trial court do not do so. Under these circumstances the trial court’s conclusion is not entitled to the deference to which findings of fact are entitled and which we extended to such findings in Kroloff v. United States, 487 F.2d 334 (9th Cir., 1973), a case somewhat similar to this one involving the Arizona community property laws.

This brings us to the Washington statute, R.C.W.A. 48.18.440, first brought to the attention of the court shortly before oral argument. Subsection (1) provides, inter alia, that policies made payable to or for the benefit of the spouse of the insured “shall unless contrary to the terms of the policy, inure to the separate use and benefit of such spouse.” The possible effect of this language on the facts of this case was not considered by the trial court nor did the briefs of the parties on this appeal deal with it. In our view it is necessary to remand to the trial court for the purpose of determining the effect, if any, of this statute on the status of Policy No. 505389. We, of course, express no opinion on this matter at this time.

Reversed and rendered as to the proceeds of Policy No. 467-750.

Reversed and remanded for further proceedings as to the proceeds of Policy No. 505389.

      . 48.18.440, Spouse’s rights in life insurance policy.

      (1) Every life insurance policy heretofore or hereafter made payable to or for the benefit of the spouse of the insured, and every life insurance policy heretofore or hereafter assigned, transferred, or in any way made payable to a spouse or to a trustee for the benefit of a spouse, regardless of how such assignment or transfer is procured, shall, unless contrary to the terms of the policy, inure to the separate use and benefit of such spouse: Provided, That the beneficial interest of a spouse in a policy upon the life of a child of the spouses, however such interest is created, shall be deemed to be a community interest and not a separate interest, unless expressly otherwise provided by the policy.