The purpose and effect of the proposed rule is to: clarify the grounds for suspension or revocation of an inmate law clerk certification; clarify the process for reinstating a law clerk certification that was suspended due to inactivity; specify ...

DEPARTMENT OF CORRECTIONS

RULE NO: RULE TITLE
33-501.301: Law Libraries
PURPOSE AND EFFECT: The purpose and effect of the proposed rule is to: clarify the grounds for suspension or revocation of an inmate law clerk certification; clarify the process for reinstating a law clerk certification that was suspended due to inactivity; specify that inmates identified as members or possible members of a security threat group shall not be assigned to work in a law library; and generally amend for grammatical accuracy.
SUBJECT AREA TO BE ADDRESSED: Law Libraries.
SPECIFIC AUTHORITY: 944.09, 944.11 FS.
LAW IMPLEMENTED: 20.315, 944.09, 944.11 FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE NOTICED IN THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE WEEKLY.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Perri King Dale, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

33-501.301 Law Libraries.

(1) No change.

(2) Definitions.

(a) Central office library services: the refers to library services section in the bureau of institutional programs in the department’s central office headquarters.

(b) Deadline: refers to any requirement imposed by law, court rule, or court order that imposes a maximum time limit on the filing of legal documents with the court.

(c) Illiterate: refers to inmates who demonstrate academic competence below the 9th grade level, as measured by the Test of Adult Basic Education as provided in Rule 6A-6.014, F.A.C.

(d) Incompetence or incompetent: refers to oral or written statements or conduct that demonstrates to departmental staff that an inmate law clerk does not have ability or knowledge to research and use the law library collection, to provide inmates with accurate information on the law and civil or criminal procedure, or to assist inmates in the preparation of legal documents or legal mail.

(e) Inmate law clerk: refers to any inmate whom that an institution has assigned to work in a law library in departmental inmate work assignment code L04. Inmate law clerks have successfully completed the department’s law clerk training program, or have equivalent legal training, and have “LEGAL” or “LAW” certificate entries recorded in the department’s offender database.

(f) Inmate law clerk trainee: refers to any inmate whom that an institution has assigned to work in a law library in departmental inmate work assignment code L03. Inmates must meet all of the qualifications established in paragraph (7)(d) to be assigned as a law clerk trainee.

(g) Inmate library clerk: refers to any inmate whom that an institution has assigned to work in the law library in departmental work assignment code L01.

(h) Interstate Corrections Compact: refers to an interstate agreement that permits the state State of Florida to transfer custody of Florida inmates to other state correctional systems in accordance with Sections 941.55-.57, F.S.

(i) Law library collection: refers to print and digital/non-print publications that include the following information: the Florida Constitution and Florida Statutes; the U.S. Constitution and U.S. Code; Florida court decisions; U.S. Supreme Court, federal circuit court, and federal district court decisions; Florida and federal practice digests; forms manuals; and secondary source materials providing research guidance in the areas of federal habeas corpus, Florida post-conviction and post-sentence remedies, and prisoner’s rights. Law library collection shall also include current copies of departmental rules and regulations as provided in paragraph (5)(b).

(j) Law library supervisor: refers to a library program specialist, librarian specialist, library technical assistant, and, whenever these positions are vacant, any other employee whom that the warden or designee appoints to oversee operation of the institution’s law library program.

(k) Legal assistance: refers to those services that the law library program or inmate law clerks provide to the inmate population. They include: providing inmates access to law library materials; assisting inmates in conducting legal research; assisting inmates with the preparation of legal documents and legal mail and administrative actions filed with the Florida Parole Commission or the Florida Bar; assisting inmates with the preparation of grievances filed with the Department of Corrections; providing inmates with access to grievance and court forms; providing indigent inmates with access to legal writing supplies pursuant to Rule 33-210.102, F.A.C.; and providing copying services to inmates pursuant to Rule 33-501.302, F.A.C.

(l) Library services administrator: the refers to departmental employee in the bureau of institutional programs who is responsible for statewide coordination of library and law library services.

(m) Official state holiday: refers to any day that the governor or the state legislature of the state of Florida designates a state holiday.

(n) Open population inmates: refers to inmates housed in general population at an a institution or unit with a law library and any inmates housed at satellite correctional facilities if law libraries are not located there.

(o) Personal legal papers: refers to legal documents, legal correspondence, research notes, and transcripts relating to ongoing civil or criminal litigation where the inmate is a named plaintiff or defendant.

(p) Primary source material: refers to legal research materials that constitute the law or have the force of law. These include constitutions, statutes, treaties, administrative rules, court rules, and court decisions.

(q) Priority access: refers to the act of providing an inmate with exceptional access to the law library collection, inmate law clerks, interlibrary loan services, or to copying services.

(r) Research items: refers to photocopies of cases, and statutes, and tables of contents, sections, or chapters from other reference titles in the institution’s law library collection, that which are lent loaned to inmates for legal research purposes. These do not include the inmate’s personal legal papers, pleadings, or transcripts.

(s) Satellite correctional facilities: refers to a medium or minimum custody correctional facility, such as an annex, work camp, road prison, forestry camp, or drug treatment center. Satellite correctional facilities do not include work release centers.

(t) Working day: refers to any weekday, i.e., Monday to Friday, except when the day is an official state holiday.

(3) Law Library Access – General.

(a) Hours of Operation. Law libraries shall be open for inmate use a minimum of 25 hours per week, except weeks that which include official state holidays. Only times that inmates have access to the law library collection and inmate law clerks, or when inmate law clerks are providing research assistance to close management, death row, other special status populations, shall be counted. The law library’s operating schedule shall be designed to permit inmates access to legal materials consistent with:

1. Inmates’ The inmate’s security classification and housing assignments assignment;

2. through 4. No change.

(b) Inmates at satellite correctional facilities without law libraries shall be provided access to the law library and inmate law clerks by means of correspondence, except as otherwise provided in paragraphs (3)(d), (e), and (f).

(c) Inmates who are temporarily transferred to correctional or medical facilities outside the department may secure legal assistance and and/or access to legal research materials by submitting a written request to the library services administrator in the central office, or the law library supervisor at the institution from which they were transferred. Inmates who are serving sentences imposed by the Florida courts by virtue of the Interstate Corrections Compact may secure legal assistance and access to legal research materials by writing the library services administrator in the central office. Correspondence should be directed to the Florida Department of Corrections, Attention: Library Services, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.

(d) Law libraries shall provide interpreters for any language, other than English, that is native to 5 percent or more of the statewide inmate population. Inmates Such inmates at satellite correctional facilities who require an interpreter shall be provided an opportunity to visit the law library within 1 week of submitting an oral request or Form DC6-236, Inmate Request, for legal assistance to the law library supervisor or other facility staff. Form DC6-236 is incorporated by reference in Rule 33-103.019, F.A.C.

(e) No change.

(f) Inmates who must meet deadlines imposed by law, court rule, or court order shall be given priority in the use of the law library and related legal services. However, the inmate shall be responsible for notifying the department of the deadline in a timely manner. Department staff shall respond to a request for special access to meet a deadline within 3 working days of receipt of the request, not including the day of receipt. This period shall not be shortened due to the failure of the inmate to give timely notice of the deadline.

1. through 4. No change.

(g) No change.

(h) Inmates who mutilate, deface, or pilfer law library materials shall be subject to formal disciplinary action as provided in Rules 33-601.301-.314, F.A.C., and penalties for infraction may include a temporary suspension of the inmate’s privilege of on-site use of the law library of up to 30 days. The disciplinary team that which presides over the disciplinary hearing shall determine the length of the suspension after considering the inmate’s past record of rule infractions while in the law library, assessing the material damage to the legal research collection, and determining whether the damage to the collection was intentional or inadvertent. Inmates who have been suspended from the law library shall conduct business through correspondence or through inmate law clerks rather than through personal visits to the law library. However, steps shall be taken to ensure that the inmate is not denied access to legal material during this suspension.

(4) Law Library Access for Inmates in Administrative Confinement, Disciplinary Confinement, Close Management, Protective Management, on Death Row, and in Medical or Mental Health Units.

(a) Inmates in administrative confinement, disciplinary confinement, and close management, and maximum management shall be permitted to have access to their personal legal papers and law books, to correspond with the law library, to have the law library deliver legal materials to their cells, and, as provided in paragraphs (3)(e) and (f), to visit with inmate law clerks. Efforts shall be made to accommodate the research needs of inmates who have filing deadlines imposed by law, court rule, or court order.

1. through 2. No change.

(b) through (e) No change.

(f) Inmates shall be limited to possession of no more than 15 research items from the law library. Research items shall be lent loaned for a maximum of 21 days. Inmates who fail to return research items within 21 days shall be subject to disciplinary action as provided in Rules 33-601.301-.314, F.A.C. Institutions shall also limit the accumulation of research materials when possession of same in an inmate’s cell creates a safety, sanitation, or security hazard.

(5) Law Library Collections.

(a) through (e) No change.

(f) Requests for the addition or deletion of titles in law library collections shall be submitted in writing to the library services administrator in the central office. The library services administrator shall review all requests and make a recommendation to the chief of the bureau of institutional programs. Requests shall be reviewed according to the material’s primary research value and whether it substantively provides additional information, or merely duplicates what is in the current collection. If the recommendation is approved, the materials shall be ordered and placed in law library collections.

(g) through (h) No change.

(6) Interlibrary Loan Services.

(a) Inmates at satellite correctional facilities without law libraries, who need access to legal materials in law library collections, shall submit Form DC5-152, Law Library Interlibrary Loan Request, or Form DC6-236, Inmate Request, to the law library supervisor at the main unit of the institution. Form DC5-152 is incorporated by reference in subsection (11) of this rule.

1. through 3. No change.

(b) through (c) No change.

1. Inmates needing such materials are to submit Form DC5-152, Law Library Interlibrary Loan Request, to the institution’s law library supervisor. Form DC5-152, Law Library Interlibrary Loan Request, is to include the full and complete citation of the material needed, and a written justification on why the material is needed. If any deadlines apply, the date of the deadline is to be noted on Form DC5-152, Law Library Interlibrary Loan Request. The law library supervisor is then to forward the request to the library services administrator in the central office. The correct mailing address is: Department of Corrections, Attention: Library Services, 2601 Blair Stone Road, Tallahassee, FL 32399-2500.

2. The library services administrator or designee shall review the request and either approve it or disapprove it. If the request is disapproved, the reason for disapproval will be noted on the request and the request shall be returned to the requesting law library. The law library supervisor will provide a copy of Form DC5-152, Law Library Interlibrary Loan Request, to the inmate. If the request is approved, the request shall be forwarded to the Florida State University law library for completion. When the completed work is received from the Florida State University law library, it shall be mailed to the requesting law library. The law library supervisor will provide a copy of Form DC5-152, Law Library Interlibrary Loan Request, and the requested material to the inmate.

(d) Inmates with deadlines imposed by law, court rule, or court order shall be given priority in the handling of interlibrary loan requests, and such requests shall be submitted separately from requests not involving deadlines.

(e) through (f) No change.

(7) Use of Inmates as Clerks in Law Libraries.

(a) No inmate whom the department has identified as a member or suspected member of a security threat group (STG) shall be assigned to work in a law library.

(b) Inmate library clerks: law libraries shall be assigned inmates as library clerks to perform work of a clerical nature. Duties of library clerks include circulating legal materials, maintaining law library files, keeping the law library clean and orderly, and assisting the law library supervisor in collecting statistics, preparing reports and correspondence, and other job tasks related to program operations. Library clerks who are assigned only such work shall not be required to complete the law clerk training program. Inmates assigned as library clerks shall not assist inmates in the preparation of legal documents and legal mail, and shall not be assigned to conduct confinement visits unless accompanied by an inmate law clerk.

(c)(b) Inmate law clerk trainees: inmates who have no formal training in legal research and who wish to work as inmate law clerks in law libraries shall be assigned as law clerk trainees, and shall be required to attend and successfully complete the law clerk training program. Inmates assigned as law clerk trainees shall not assist inmates in the preparation of legal documents and legal mail, and shall not be assigned to conduct confinement visits unless accompanied by an inmate law clerk.

(d)(c) Inmate law clerks: law libraries shall be assigned inmates as inmate law clerks to assist inmates in the research and use of print and digital or non-print resources in the law library collection, and in the drafting of legal documents, legal mail, administrative actions filed with the Florida Parole Commission, the Florida Bar, and other administrative bodies, and inmate grievances filed with the Department of Corrections. A minimum of 2 inmate law clerks shall be assigned to law libraries in adult institutions, and a minimum of 1 inmate law clerk shall be assigned to law libraries in youthful offender institutions. Institutions shall assign additional inmate law clerks to the law library as needed to ensure that illiterate and impaired inmates are provided research assistance.

(e)(d) Qualifications. Inmate law clerks shall:

1. Have a high school diploma, general educational development, or Test of Adult Basic Education (TABE) subtest total battery scores of grade 9.0 or higher in reading and language, or otherwise demonstrate that he or she possesses the reading and language skills necessary to read and understand the law, to conduct legal research, and to assist other inmates in legal research and the preparation of legal documents.

2. through 3. No change.

4. Display a willingness to work and cooperate with others and the ability to perform the general duties of an inmate law clerk, including good oral and written communication skills, good comprehension, and intelligence.

(f)(e) Law clerk training program. Central office library services shall develop a training program to provide inmates who work in law libraries with knowledge of legal research and writing, use of specific legal research materials to include digital or non-print resources in the law library collection, the law and rules of criminal law and post-conviction remedies, prisoners’ civil rights, and other subject matter identified as necessary for an inmate law clerk to provide meaningful assistance to inmates. Inmates who successfully complete the law clerk training program shall be given a certificate by central office library services documenting successful completion of the program, and a notation shall be recorded in the department’s offender database. Central office library services will document an inmate’s successful completion of the law clerk training program in the department’s offender database. Central office library services shall revoke or suspend certification for commission of acts prohibited by this section or for failure to satisfactorily perform the duties assigned to an inmate law clerk.

(g)(f) Inmates, who have prior educational or work experience in the law, or who possess current knowledge of the law, knowledge of legal research materials, and knowledge of how to use them, may be certified by the office of library services without having to complete the law clerk training program. Admissible educational achievements or work experiences include:

1. Receipt of an associate or bachelor’s degree in paralegal research or pre-law;

2. Receipt of a juris doctorate degree; or

3. One or more years of verifiable work experience as a paralegal working under the direct supervision of an attorney.; or

4. Successful completion of a written examination developed by the office of library services that verifies that an inmate possesses current knowledge of the law, knowledge of legal research materials and how to use them, and can communicate effectively in writing.

(h)(g) At the time of an inmate’s assignment to work in the law library, the law library supervisor shall advise the inmate that he or she is not to disclose any information about an inmate’s legal case to other inmates.

(i)(h) Incompetence. The law library supervisor shall immediately remove an inmate law clerk from his or her work assignment in the law library upon demonstration that the inmate law clerk is incompetent. When a law library supervisor removes an inmate law clerk for incompetence, he or she will immediately inform the library services administrator, to include providing a report detailing the reason(s) for removal. The library services administrator will review the matter to determine whether the removal should be temporary, as when a performance deficiency can be correctd through completion of additional training, or should be permanent. If the library services administrator determines that the performance deficiencies cannot be corrected through additional training, he or she will revoke the inmate’s law clerk certification. Central office library services shall also have the authority to order the removal of an inmate law clerk from his or her work assignment in the law library for incompetence.

(j)(i) Prohibited conduct: inmate law clerks. Violation of any of the provisions of this section shall result in the immediate removal of the inmate law clerk from his or her work assignment in the law library, and disciplinary action pursuant to Rules 33-601.301-.314, F.A.C. The library services administrator will be informed whenever an institution removes an inmate law clerk from the law library for any of the following reasons:

1. through 7. No change.

8. Inmate law clerks shall not display an unwillingness to work and cooperate with others or refuse or fail to perform the general duties of that work assignment. Such conduct shall be defined as a failure to follow departmental rules and procedures relating to law library program operations, or violation of the rules of prohibited conduct, Rule 33-601.314, F.A.C., while in the law library or performing work-related tasks.

(k)(j) Upon receipt of notice that an inmate law clerk has been found guilty of a disciplinary report infraction concerning violation of any of the provisions of subsection (7), the library services administrator will review the matter to determine whether the inmate’s law clerk certificate should be revoked. The determination as to whether the inmate’s certificate shall be revoked shall be based on a consideration of the following factors:

1. the findings of the disciplinary report;

2. discussions with institution staff about the infraction;

3. a record of prior counseling or disciplinary action for violation of the provisions of subsection (7);

4. a record of multiple violations of the provisions of subsection (7); and

5. a determination that the violations of subsection (7) were intentional rather than inadvertent.

If the library services administrator determines that revocation is warranted, the inmate’s law clerk training certificate shall be revoked and his or her certificate entry will be deleted from the offender database.

(k) through (n) renumbered (l) through (o) No change.

(p)(o) Central office library services shall suspend the law clerk certificate of an inmate when 4 years have passed since he or she worked in a law library as an inmate law clerk. Central office library services shall reinstate the law clerk certificate once an inmate recompletes training pursuant to paragraph (7)(f) or otherwise demonstrates, pursuant to paragraph (7)(g), that he or she has the requisite educational experience to continue as a law clerk if the inmate demonstrates, through successful completion of a written examination, that he or she still possesses current knowledge of the law, knowledge of legal research materials and how to use them, and can communicate effectively in writing.

(q)(p) Inmate law clerks must secure prior, written approval from the law library supervisor, on Form DC5-153, Personal Legal Papers Authorization, to retain their own or another inmate’s personal legal papers in the law library. Form DC5-153 is incorporated by reference in subsection (11) of this rule. At a minimum, the following information shall be documented on Form DC5-153: the committed name and DC number of the inmate who owns the papers; a list of all documents and papers to be retained in the law library and the number of pages for each; and, the committed name and DC number of the inmate law clerk who is assisting the inmate. The inmate shall then sign and date the form and submit it to the law library supervisor for approval. If the law library supervisor approves the request, he or she shall sign the form and enter the date when the personal legal papers must be removed from the law library. Inmates who do not remove their personal legal papers from the law library by that date shall be subject to formal disciplinary action as provided in Rules 33-601.301-.314, F.A.C.

1. Only those personal legal papers that are specifically needed for research, or to prepare the necessary legal documents or mail, shall be stored in the law library. The personal legal papers may be retained in the law library for only as long as it takes to prepare the needed legal documents or legal mail or for 20 calendar days, whichever is shorter.

2. No change.

(r)(q) Inmate law clerks shall not be permitted to conduct legal research or prepare legal documents and legal mail on personal legal matters during work hours unless:

1. through 2. No change.

(8) No change.

(9) Grievance and Court Forms.

(a) Law libraries shall provide inmates access to Form DC6-236, Inmate Request, and Form DC1-303, Request for Administrative Remedy or Appeal. Form DC1-303 is incorporated by reference in Rule 33-103.019, F.A.C. Inmates shall not be required to submit a Form DC6-236, Inmate Request, in order to secure grievance forms. Inmates who request more than 5 grievance forms at a time may be required to explain how the forms will be used.

(b) No change.

(10) No change.

(11) Forms. The following forms are hereby incorporated by reference. A copy of any of these forms is available from the Forms Control Administrator, Office of Research, Planning and Support Services, 2601 Blair Stone Road, Tallahassee, Florida 32399-2500.

(a) through (b) No change.

Rulemaking Authority 944.09, 944.11 FS. Law Implemented 20.315, 944.09, 944.11 FS. History–New 4-6-93, Amended 7-3-94, 11-2-94, 4-28-96, 9-30-96, 12-7-97, Formerly 33-3.0055, Amended 2-15-01, 11-4-01, 12-23-03, 1-7-07, 1-6-09, 6-16-09,________.