NOTICE
Decision filed 03/02/06.
The text of this decision
may be changed or corrected
prior to the filing of a Petition for
Rehearing or the disposition
of the same.                                    NO. 5-04-0082
                                                  IN THE

                                        APPELLATE COURT OF ILLINOIS
                                               FIFTH DISTRICT

GENE ARNETT,                           ) Appeal from the
                                       ) Circuit Court of
   Plaintiff-Appellant,                ) Alexander County.
                                       )
v.                                     ) No. 02-MR-35
                                       )
HOMER MARKEL, DAVID TAYLOR,            )
LESLIE MARKEL, SALLY RAMSEY,           )
KAREN ELDER, GEORGE WELBORN,           )
CAROLYN DUMAS, TERRI ANDERSON, )
NANCY TUCKER, and DONALD SNYDER, ) Honorable
                                       ) Stephen L. Spomer,
   Defendants-Appellees.               ) Judge, presiding.
______________________________________________________________________

            JUSTICE HOPKINS delivered the opinion of the court:

            The plaintiff, Gene Arnett, an inmate at Tamms Correctional Center (Tamms), brought

this civil rights action, pursuant to section 1983 of the Civil Rights Act of 1871 (42 U.S.C.
'1983 (2000)), alleging that the defendants, Captain Homer Markel, David Taylor, Leslie
Markel, Sally Ramsey, Karen Elder, George Welborn, Carolyn Dumas, Terri Anderson,

Nancy Tucker, and Donald Snyder, violated his first amendment right to freedom of speech

by refusing to allow him to mail an internal investigative report out of Tamms. The circuit
court of Alexander County granted a summary judgment in favor of the defendants. On

appeal, Arnett argues that the circuit court erred in denying his motion to disqualify the
Attorney General's office from representing the defendants and in holding that the defendants

                                                      1
did not violate his first amendment right to freedom of speech. We affirm in part and reverse
in part.



                                      BACKGROUND
       In May of 2000, Arnett and two other inmates attempted to escape from Tamms, a

closed, maximum-security prison operated by the Illinois Department of Corrections (DOC).
The inmates used hacksaw and jigsaw blades to attempt to cut through the bars on their cell
windows. When DOC officials discovered the attempted escape, they suggested to the press

that the saw blades might have been hidden in the binding of a hardcover book delivered as

legal mail to an inmate, that such mail typically comes from attorneys, and that the law
prohibits them from searching legal mail.

       The DOC's internal investigations department investigated the attempted escape and

prepared an investigation report, which was dated November 22, 2000. The report indicated

that a sister of one of the other inmates involved in the attempted escape had successfully
mailed the saw blades into Tamms, not once, but twice, by disguising the envelopes as legal

mail. The report also described where the inmates had hidden the saw blades within Tamms

and how they had used them to attempt to saw through the bars on their windows. The report
also included statements that inmates, guards, and confidential sources had made to the

investigator.
       On April 3, 2001, Arnett was criminally charged in the circuit court of Alexander
County with possession of contraband in a penal institution and attempted escape. People v.

Arnett, No. 01-CF-31. While the criminal case was pending, a DOC investigator gave the
Alexander County State's Attorney a copy of the report, the State's Attorney gave Arnett and
his attorney copies of the report during discovery, and the State's Attorney filed a copy of the

report among the discovery pleadings in the criminal case.

                                               2
       In May of 2001, Arnett made prison officials at Tamms aware that he had a copy of
the report, including guards' home addresses. In response, on May 21, 2001, prison officials

at Tamms removed the report from Arnett's cell and redacted the guards' addresses. At that
time, prison officials also discovered that Arnett had a schematic drawing of a cell window,
which they also removed. Prison officials then returned the report, in its redacted form, to

Arnett.
       At that time, defendant George Welborn, the warden at Tamms, and Shelton Frey, the
DOC's in-house legal counsel, determined that they should seek a protective order to prevent

Arnett from disseminating the guards' home addresses and the schematic drawing. At the

DOC's request, the Attorney General's office intervened in the criminal case and filed a
motion for a protective order barring public access to certain materials filed by the State's

Attorney (including the guards' home addresses and the schematic drawing). At the hearing

on the motion, the DOC was represented by the Attorney General's office, but the DOC's in-

house legal counsel also played an active role. The trial court entered a limited protective
order. However, the Attorney General's office did not request, and the circuit court did not

enter, a protective order covering that portion of the report at issue in this case.

       On September 8, 2001, after the criminal proceedings terminated as a result of Arnett's
guilty plea, Arnett attempted to mail the report, along with a brief cover letter, to Jim

Winters, the director of Chicago Commons. According to Arnett, he wanted to mail the
report to Winters because he knew that Winters was active in several community
organizations in Chicago, and he wanted to show that the DOC's statements to the press

about how the saw blades had been smuggled into Tamms were false. Mailroom staff did not
mail the letter and report. Instead, they provided the letter and report to defendant Homer
Markel, the captain in charge of internal affairs at Tamms, for review.

       On September 18, 2001, Arnett filed a formal grievance, complaining that the letter

                                               3
and report had not been mailed. Initially, prison officials in both the mailroom and internal
affairs claimed that they had no knowledge of the letter.

       According to Captain Markel, he had misplaced the letter and report and did not
discover them in his desk until November 2, 2001. At that time, he reviewed the report and
determined that mailing the report presented a threat to the safety and security of the prison.

Specifically, Captain Markel determined that safety and security concerns included the
potential identification of confidential sources, a detailed account of how saw blades had
been successfully smuggled into the prison, a detailed account of where saw blades had been

successfully hidden within the prison, and the confirmation (and identification) of another

inmate's involvement in providing information to investigators, along with that inmate's
family members' home addresses. Captain Markel determined that the information detailing

the security measures at the prison, or the lack thereof, would constitute a threat to the prison

because it would allow individuals to circumvent that security when planning escapes, trying

to introduce contraband into the prison, or trying to harm prison employees. Captain Markel
also determined that the identification of confidential sources and their family members could

lead to the physical harm of those individuals, as well as instability within the prison setting.

Captain Markel brought the matter to the attention of Warden Welborn, who ultimately
decided not to allow Arnett to mail the report. Captain Markel returned the letter and report

to Arnett and told Arnett that he would not be allowed to mail the report because it would be
a threat to the safety and security of the prison.
       At that time, Arnett filed a second grievance regarding the DOC's refusal to mail the

report. Both of his grievances were subsequently denied in final administrative decisions.
       On May 15, 2002, Arnett filed the instant action. In his pro se complaint, Arnett
alleged that the defendants' refusal to allow him to mail the report violated his first

amendment right to freedom of speech. He alleged that he could freely disseminate the

                                               4
report because the State produced it during discovery in the criminal proceedings against him
and filed it in the criminal court case file. Arnett alleged that the report contained evidence

regarding the lack of security at Tamms, which was of general public interest and which
would have been embarrassing to the DOC and to the defendants.
          Arnett named several defendants in the complaint, including Captain Markel and

Warden Welborn (who had refused to allow him to mail the report); David Taylor, Leslie
Markel, Sally Ramsey, Karen Elder, and Carolyn Dumas (grievance officers and related
personnel); Terri Anderson and Nancy Tucker (members of the administrative review board

that hears grievance appeals); and Donald Snyder (the Director of Corrections at that time).

In the complaint, Arnett sought both damages and an injunction allowing him to mail the
report.

          On July 10, 2002, an attorney entered his appearance on Arnett's behalf and filed a

motion to disqualify the Attorney General's office from representing the defendants. The

motion alleged that on March 27, 2002, after exhausting all of his administrative remedies,
Arnett wrote a letter to then-Attorney General Jim Ryan and asked him to investigate the

censorship of his outgoing mail, which is the subject of this case.1 Arnett alleged that he sent
the letter to engage "the Attorney General's Division for the Enforcement of Civil and Equal
Rights to remedy [the] defendants' unconstitutional censorship of his outgoing mail." Arnett
did not specify how he had addressed the letter, other than to state that he had written to

"Attorney General Ryan." The letter was forwarded to Christopher L. Higgerson, an

assistant Attorney General in the Attorney General's general law division. Higgerson was
responsible for defending other litigation initiated by Arnett, and Higgerson ultimately was
assigned to represent the defendants in this case. Arnett argued that the Attorney General's

          1
              Arnett's letter to Attorney General Ryan was never made a part of the record.

                                                  5
office should be disqualified from representing the defendants so the defendants would not
have the advantage of the information he had provided in his attempt to obtain representation.

       At a hearing on August 26, 2002, the circuit court denied Arnett's motion to disqualify
the Attorney General's office but ordered that a different assistant Attorney GeneralBone who
had not read Arnett's letterBbe assigned to represent the defendants. On September 27, 2002,

in compliance with the order, a different assistant Attorney General was substituted as
defense counsel.
       On November 17, 2003, the defendants filed a motion for a summary judgment,

arguing that they had not violated Arnett's first amendment right to freedom of speech

because the law permitted them to refuse to mail the report based on safety and security
concerns. The defendants further argued that all of them except Captain Markel and Warden

Welborn were entitled to a summary judgment because they were not "personally responsible

for any constitutional violation" if there was one. Finally, the defendants argued that they

were entitled to a summary judgment on Arnett's damages claim because that claim was
barred by qualified immunity.

       On December 15, 2003, Arnett filed his response to the defendants' motion for a

summary judgment. In his response, Arnett argued that the motion for a summary judgment
should be denied because the defendants failed to meet their burden of showing that mailing

the report would be a threat to safety or security, especially when the report was freely
available to the public in the criminal case file in Alexander County.
       On January 23, 2004, the circuit court entered an order granting a summary judgment

in favor of the defendants. The court found that the defendants had not violated Arnett's first
amendment right to freedom of speech. The court further found that all of the defendants
except Captain Markel and Warden Welborn were entitled to a summary judgment because

they were not personally responsible for the claimed constitutional deprivation. Finally, the

                                              6
court found that the defendants were entitled to a summary judgment on Arnett's damages
claim, based on qualified immunity. Arnett filed a timely notice of appeal.



                                         ANALYSIS
       On appeal, Arnett first argues that the trial court erred in denying his motion to

disqualify the Attorney General's office from representing the defendants. Arnett bases his
claim on the supposed disclosure of confidences that occurred when his unsolicited letter to
then-Attorney General Ryan, which he claims was intended for the civil rights bureau of the

Attorney General's office, was forwarded to assistant Attorney General Higgerson in the

general law division. Higgerson was defending other litigation brought by Arnett, and he
ultimately was assigned to represent the defendants in this case.

       Determining whether to disqualify an attorney is within the trial court's discretion, and

the trial court's determination will not be disturbed on appeal absent an abuse of that

discretion. Schwartz v. Cortelloni, 177 Ill. 2d 166, 176 (1997). "An abuse of discretion
occurs where no reasonable person would agree with the position adopted by the trial court."

Schwartz, 177 Ill. 2d at 176.

       In Hadley v. Ryan, 345 Ill. App. 3d 297, 303 (2003), which is factually similar to the
present case, the court declined to disqualify the Attorney General's office. In Hadley, a

prisoner-plaintiff was unhappy with certain actions of prison officials and sent then-Attorney
General Jim Ryan a complaint outlining proposed criminal charges against the prison
officials, but the Attorney General's office declined to file any charges. Hadley, 345 Ill. App.

3d at 299. The plaintiff in Hadley subsequently filed a mandamus complaint against
Attorney General Ryan and certain prison officials. Hadley, 345 Ill. App. 3d at 299-300.
The Attorney General's office entered an appearance on the defendants' behalf, and the

plaintiff moved to strike the appearance. Hadley, 345 Ill. App. 3d at 300. Without ruling on

                                               7
the plaintiff's motion, the circuit court granted the defendants' motion to dismiss. Hadley,
345 Ill. App. 3d at 300, 303.

       On appeal in Hadley, the plaintiff argued that the circuit court had abused its
discretion in failing to rule on his motion to strike the appearance of the Attorney General's
office. Hadley, 345 Ill. App. 3d at 303. The plaintiff argued that there was a conflict of

interest because the Attorney General's office was required to represent the interests of " 'all
of the people of the State of Illinois,' " including prisoners as well as state employees.
Hadley, 345 Ill. App. 3d at 303. In rejecting the plaintiff's argument, the appellate court

found that no conflict of interest existed because, although the Attorney General's office

represents the people of the State of Illinois, the Attorney General's office does not represent
private individuals. Hadley, 345 Ill. App. 3d at 303.

       Similarly, in the present case, no conflict of interest existed because the Attorney

General's office does not represent private individuals and there was no attorney-client

relationship between Arnett and the Attorney General's office. See Hadley, 345 Ill. App. 3d
at 303. In addition, the circuit court reasonably resolved the issue by ordering that a different

assistant Attorney GeneralBone who had not received and read Arnett's letterBtake over as

defense counsel. The ruling protected Arnett's interest in avoiding disclosures not intended
for his opponents and, at the same time, allowed the Attorney General's office to fulfill its

statutory duty to provide the defendants a free defense. Accordingly, the circuit court did not
abuse its discretion in refusing to disqualify the Attorney General's office from representing
the defendants in this case. See Schwartz, 177 Ill. 2d at 176.

       In his opening brief on appeal, Arnett did not challenge the circuit court's finding that
all of the defendants except Captain Markel and Warden Welborn were entitled to a summary
judgment on the basis that they were not personally responsible for the claimed constitutional

deprivation; nor did he challenge the circuit court's finding that all of the defendants were

                                               8
entitled to a summary judgment on his damages claim, based on qualified immunity.
Supreme Court Rule 341(e)(7) provides, in pertinent part, "Points not argued [in an

appellant's brief] are waived and shall not be raised in the reply brief, in oral argument, or on
petition for rehearing." 188 Ill. 2d R. 341(e)(7). Accordingly, those arguments are waived,
and the only issue left on appeal is whether the circuit court erred in granting a summary

judgment in favor of defendants Captain Markel and Warden Welborn on Arnett's first
amendment claim seeking an injunction allowing him to mail the report.
       "Summary judgment is proper where, when viewed in the light most favorable to the

nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that

there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Northern Illinois Emergency Physicians v. Landau, Omahana

& Kopka, Ltd., 216 Ill. 2d 294, 305 (2005); see 735 ILCS 5/2-1005(c) (West 2004). "We

review the circuit court's grant of summary judgment de novo." Illinois State Chamber of

Commerce v. Filan, 216 Ill. 2d 653, 661 (2005). In addition, where, as here, the issue on
appeal is limited to the application of the relevant constitutional principles to undisputed

facts, the standard of review is de novo. City of Champaign v. Torres, 214 Ill. 2d 234, 241

(2005).
       Initially, Arnett argues that the trial court erred in holding that Turner v. Safley, 482

U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987), instead of Procunier v. Martinez, 416 U.S.
396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974), overruled on other grounds by Thornburgh v.
Abbott, 490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989), applies to the censorship of

a prisoner's outgoing mail. As the defendants correctly argue, because Arnett agreed in the
circuit court that Turner set the standard, on appeal we could find that he has waived the right
to complain of the error. See McMath v. Katholi, 191 Ill. 2d 251, 255 (2000) (" 'It is

fundamental to [the] adversarial process that a party waives his right to complain of an error

                                               9
where to do so is inconsistent with the position taken by the party in an earlier court
proceeding' " (quoting Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 543 (1984))). However,

"the rule of waiver is an admonition to the parties and not a limitation on the jurisdiction of
this court." Filan, 216 Ill. 2d at 664. "A reviewing court may, in furtherance of its
responsibility to provide a just result and to maintain a sound and uniform body of precedent,

override considerations of waiver that stem from the adversarial nature of our system."
Filan, 216 Ill. 2d at 664. In the present case, we elect to address the argument on appeal.
       The United States Supreme Court has articulated two standards of review for first

amendment claims regarding interference with a prisoner's mail. Thornburgh v. Abbott, 490

U.S. 401, 408-09, 104 L. Ed. 2d 459, 470, 109 S. Ct. 1874, 1879 (1989).
       For incoming mail or mail within the prison system, a court will uphold regulations or

actions restricting inmate mail if they are "reasonably related to legitimate penological

interests." Turner, 482 U.S. at 89, 96 L. Ed. 2d at 79, 107 S. Ct. at 2261; see also

Thornburgh, 490 U.S. at 409-14, 104 L. Ed. 2d at 470-74, 109 S. Ct. at 1879-82.
       However, the Supreme Court has articulated a less deferential standard for reviewing

the censorship of outgoing prisoner mail. See Thornburgh, 490 U.S. at 409-14, 104 L. Ed. 2d

at 470-74, 109 S. Ct. at 1879-82. To legitimately censor outgoing mail, prison officials must
show two things. Martinez, 416 U.S. at 413, 40 L. Ed. 2d at 240, 94 S. Ct. at 1811. "First,

the regulation or practice in question must further an important or substantial governmental
interest unrelated to the suppression of expression." Martinez, 416 U.S. at 413, 40 L. Ed. 2d
at 240, 94 S. Ct. at 1811. "Second, the limitation of First Amendment freedoms must be no

greater than is necessary or essential to the protection of the particular governmental interest
involved." Martinez, 416 U.S. at 413, 40 L. Ed. 2d at 240, 94 S. Ct. at 1811.
       Arnett is correct that, because this is a case about outgoing, and not incoming, prisoner

mail, the trial court erred in applying Turner instead of Martinez. See Thornburgh, 490 U.S.

                                              10
at 413, 104 L. Ed. 2d at 473, 109 S. Ct. at 1881-82. However, the defendants argue that even
under the less deferential Martinez standard, refusing to allow Arnett to mail the report does

not violate his first amendment right to freedom of speech because the report implicates
safety and security concerns under constitutionally valid DOC regulations.
       The DOC's outgoing mail regulation (20 Ill. Adm. Code '525.130(h) (2001)) permits

employees to "spot check and read outgoing non[]privileged mail."                  "Outgoing
non[]privileged mail *** may be *** withheld from delivery if it presents a threat to security
or safety ***." 20 Ill. Adm. Code '525.130(h) (2001). The regulation specifies nine types of

communications that present a threat to security or safety, including letters that "contain[]

information regarding sending contraband into or out of the facility, plans to escape, or plans
to engage in criminal activity" and letters that "contain[] information which, if

communicated, might result in physical harm to another." 20 Ill. Adm. Code '525.130(h)(3),

(h)(7) (2001).

       In Gaines v. Lane, 790 F.2d 1299, 1302-05 (7th Cir. 1986), which involved a facial
challenge to an earlier, substantively similar version of this regulation, the Seventh Circuit

upheld the validity of the regulation. Applying Martinez, the court found that the regulation

furthered the important governmental interests of safety and security and that the regulation
was "well-tailored to minimize [its] intrusiveness" and was not overly broad. Gaines, 790

F.2d at 1304-05. The court also concluded that the regulation struck " 'a proper balance
between the constitutional rights of [prisoners] and the legitimate concerns of prison
officials.' " Gaines, 790 F.2d at 1305 (quoting Meadows v. Hopkins, 713 F.2d 206, 211 (6th

Cir. 1983)).
       However, in the present case, unlike in Gaines, Arnett is not arguing that the
regulation is invalid on its face. Instead, he is arguing that the regulation is invalid as

applied under the particular facts in this case.

                                              11
       Under the first prong of the Martinez test, the defendants have the burden of showing
that preventing Arnett from mailing the report furthers "an important or substantial

governmental interest unrelated to the suppression of expression" (Martinez, 416 U.S. at 413,
40 L. Ed. 2d at 240, 94 S. Ct. at 1811). The defendants argue that preventing Arnett from
mailing the report furthers the important or substantial governmental interest in safety and

security.
       In response, Arnett argues that preventing him from mailing the report does not
further any important or substantial governmental interest because the report is already freely

available to the public in both the criminal and civil case files in the circuit court of

Alexander County. In support of his argument, Arnett relies upon, inter alia, the United
States Supreme Court's decision in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 43 L. Ed.

2d 328, 95 S. Ct. 1029 (1975).

       In Cox Broadcasting Corp., a reporter broadcast a murder-rape victim's name on a

television news program. Cox Broadcasting Corp., 420 U.S. at 471-74, 43 L. Ed. 2d at 335-
37, 95 S. Ct. at 1034-35. The reporter had obtained the victim's name from the criminal

indictment, which was a part of the public record in the criminal case. Cox Broadcasting

Corp., 420 U.S. at 472-73, 43 L. Ed. 2d at 336, 95 S. Ct. at 1035. The victim's father sued
the reporter and the broadcasting company who owned the television station for damages for

invasion of privacy, relying on a state statute making it a misdemeanor to broadcast a rape
victim's name. Cox Broadcasting Corp., 420 U.S. at 471-73, 43 L. Ed. 2d at 335-37, 95 S.
Ct. at 1034-35.

       The issue presented in Cox Broadcasting Corp. was "whether the State may impose
sanctions on the accurate publication of the name of a rape victim obtained from public
recordsBmore specifically, from judicial records which are maintained in connection with a

public prosecution and which themselves are open to public inspection." Cox Broadcasting

                                              12
Corp., 420 U.S. at 491, 43 L. Ed. 2d at 347, 95 S. Ct. at 1044. In Cox Broadcasting Corp.,
the Court held that the State could not constitutionally impose sanctions for the accurate

publication of a rape victim's name obtained from judicial records open to public inspection.
Cox Broadcasting Corp., 420 U.S. at 491, 43 L. Ed. 2d at 347, 95 S. Ct. at 1044.
       The Court explained the rationale for its holding as follows:

              "By placing the information in the public domain on official court records, the
       State must be presumed to have concluded that the public interest was thereby being
       served. Public records by their very nature are of interest to those concerned with the

       administration of government, and a public benefit is performed by the reporting of

       the true contents of the records by the media. The freedom of the press to publish that
       information appears to us to be of critical importance to our type of government in

       which the citizenry is the final judge of the proper conduct of public business. In

       preserving that form of government the First and Fourteenth Amendments command

       nothing less than that the States may not impose sanctions on the publication of
       truthful information contained in official court records open to public inspection.

              *** [T]he First and Fourteenth Amendments will not allow exposing the press

       to liability for truthfully publishing information released to the public in official court
       records. If there are privacy interests to be protected in judicial proceedings, the

       States must respond by means which avoid public documentation or other exposure of
       private information. Their political institutions must weigh the interests in privacy
       with the interests of the public to know and of the press to publish. Once true

       information is disclosed in public court documents open to public inspection, the press
       cannot be sanctioned for publishing it. ***
              *** Appellee has not contended that the name was obtained in an improper

       fashion or that it was not on an official court document open to public inspection.

                                               13
       Under these circumstances, the protection of freedom of the press provided by the
       First and Fourteenth Amendments bars the State of Georgia from making appellants'

       broadcast the basis of civil liability." Cox Broadcasting Corp., 420 U.S. at 495-97, 43
       L. Ed. 2d at 349-50, 95 S. Ct. at 1046-47.
       The defendants argue that Cox Broadcasting Corp. is not helpful to our analysis in

this case simply because Arnett is a prisoner. We disagree.
       "Prison walls do not form a barrier separating prison inmates from the protections of
the Constitution." Turner, 482 U.S. at 84, 96 L. Ed. 2d at 75, 107 S. Ct. at 2259. "It is

settled that a prison inmate 'retains those [constitutional] rights that are not inconsistent with

his status as a prisoner or with the legitimate penological objectives of the corrections
system.' " Turner, 482 U.S. at 95, 96 L. Ed. 2d at 83, 107 S. Ct. at 2265 (quoting Pell v.

Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 501, 94 S. Ct. 2800, 2804 (1974)). As the

Court held in Martinez, the censorship of a prisoner's outgoing mail is justified only if the

following two criteria are met:
       "First, the regulation or practice in question must further an important or substantial

       governmental interest unrelated to the suppression of expression. Prison officials may

       not censor inmate correspondence simply to eliminate unflattering or unwelcome
       opinions or factually inaccurate statements. Rather, they must show that a regulation

       authorizing mail censorship furthers one or more of the substantial governmental
       interests of security, order, and rehabilitation. Second, the limitation of First
       Amendment freedoms must be no greater than is necessary or essential to the

       protection of the particular governmental interest involved. Thus a restriction on
       inmate correspondence that furthers an important or substantial interest of penal
       administration will nevertheless be invalid if its sweep is unnecessarily broad. ***

       [A]ny regulation or practice that restricts inmate correspondence must be generally

                                               14
       necessary to protect one or more of the legitimate governmental interests identified
       above." Martinez, 416 U.S. at 413-14, 40 L. Ed. 2d at 240, 94 S. Ct. at 1811-12.

The less deferential Martinez analysis is limited to outgoing mail because "[t]he implications
of outgoing correspondence for prison security are of a categorically lesser magnitude than
the implications of incoming materials." Thornburgh, 490 U.S. at 413, 104 L. Ed. 2d at 473,

109 S. Ct. at 1881-82. "[O]utgoing personal correspondence from prisoners[][does] not, by
its very nature, pose a serious threat to prison order and security." Thornburgh, 490 U.S. at
411, 104 L. Ed. 2d at 471-72, 109 S. Ct. at 1880.

       In the present case, a DOC investigator intentionally gave a copy of the report to the

Alexander County State's Attorney, without putting any restrictions on the use of the report.
The State's Attorney then intentionally gave copies of the report to Arnett and his attorney

during discovery in the criminal case against Arnett, without putting any restrictions on the

use of the report. The State's Attorney then intentionally filed a copy of the report, along

with other discovery documents, in the criminal case file in the circuit court of Alexander
County. The State's Attorney did not attempt to file the report under seal so that it would not

be available to the public.

       In addition, when prison officials, including the DOC's in-house legal counsel and
Warden Welborn, discovered that Arnett had a copy of the report and requested that the

Attorney General's office intervene in the criminal case to request a protective order barring
public access to certain materials filed by the State's Attorney, including guards' home
addresses and the schematic drawing, they did not ask the Attorney General's office to

attempt to seal the remainder of the report, which is what Arnett attempted to mail out in this
case. Accordingly, the Attorney General's office did not include that portion of the report at
issue in this case within the motion for a protective order. Moreover, both the Attorney

General's office and the DOC's in-house legal counsel played an active role at the hearing on

                                              15
that motion, but neither of them requested a protective order covering that portion of the
report at issue in this case. As a result, the trial court sealed those parts of the report that

revealed the guards' home addresses and the schematic drawing but did not seal the
remainder of the report. Accordingly, that portion of the report at issue in this case was, and
still is, freely available to the public in the criminal case file in Alexander County.

       Moreover, when Arnett filed the instant case in the circuit court of Alexander County
and attached a copy of the report to his complaint, the defendants did not seek a protective
order in the civil case. In fact, when the defendants filed their motion for a summary

judgment in this case, they intentionally attached a copy of the report. They did not seek a

protective order barring public access to the report, nor did they seek to file the report under
seal, nor did they seek to file a redacted version of the report. Thus, it is clear from the

defendants' own actions in this case that they have no concern about maintaining the report in

confidence.

       By intentionally filing a copy of the report in the publicly accessible court file in the
criminal case against Arnett, by intentionally filing a copy of the report in the publicly

accessible court file in the instant civil case, and by making no effort whatsoever to get a

protective order barring public access to the report, "the State must be presumed to have
concluded that the public interest was thereby being served" (Cox Broadcasting Corp., 420

U.S. at 495, 43 L. Ed. 2d at 349, 95 S. Ct. at 1046).
       It is undisputed that under Cox Broadcasting Corp., the defendants could not
constitutionally prevent the Chicago Tribune or the Southern Illinoisan from publishing the

entire contents of the report. See Cox Broadcasting Corp., 420 U.S. at 495-97, 43 L. Ed. 2d
at 349-50, 95 S. Ct. at 1046-47. In addition, it is undisputed that Winters could go to the
Alexander County courthouse in Cairo, request to see either Arnett's criminal case file or the

civil case file in the present case, pay the copying fee, and get a copy of the entire report.

                                              16
       Therefore, under the particular facts in the present case, and in light of the Supreme
Court's rationale in Cox Broadcasting Corp., 420 U.S. at 496-97, 43 L. Ed. 2d at 350, 95 S.

Ct. at 1047, we find that the defendants' refusal to allow Arnett to mail the report fails the
first prong of the Martinez test, i.e., that any restriction on a prisoner's first amendment right
to send outgoing mail must further "an important or substantial governmental interest

unrelated to the suppression of expression" (Martinez, 416 U.S. at 413, 40 L. Ed. 2d at 240,
94 S. Ct. at 1811). Accordingly, we find that the defendants' refusal to allow Arnett to mail
the report violates Arnett's first amendment right to freedom of speech (see Martinez, 416

U.S. at 413, 40 L. Ed. 2d at 240, 94 S. Ct. at 1811) and that the circuit court, therefore, erred

in granting a summary judgment in favor of the defendants on Arnett's claim seeking an
injunction allowing him to mail the report (see Northern Illinois Emergency Physicians, 216

Ill. 2d at 305; 735 ILCS 5/2-1005(c) (West 2004)). Pursuant to Supreme Court Rule

366(a)(5) (155 Ill. 2d R. 366(a)(5)), we enter a judgment in favor of Arnett and against

defendants Captain Markel and Warden Welborn on Arnett's first amendment claim seeking
an injunction allowing him to mail the report, and we order prison officials at Tamms to

allow Arnett to mail the report.

                                        CONCLUSION
       For the foregoing reasons, the order of the circuit court of Alexander County denying

Arnett's motion to disqualify the Attorney General's office from representing the defendants
in this case is affirmed; that portion of the circuit court's order granting a summary judgment
in favor of all of the defendants on Arnett's first amendment claim seeking damages is

affirmed; that portion of the circuit court's order granting a summary judgment in favor of all
of the defendants except Captain Markel and Warden Welborn is affirmed; that portion of the
circuit court's order granting a summary judgment in favor of defendants Captain Markel and

Warden Welborn on Arnett's first amendment claim seeking an injunction allowing him to

                                               17
mail the report is reversed; a judgment is entered in favor of Arnett and against defendants
Captain Markel and Warden Welborn on Arnett's first amendment claim seeking an

injunction allowing him to mail the report; and prison officials at Tamms are ordered to allow
Arnett to mail the report.



       Affirmed in part and reversed in part; judgment entered.


       DONOVAN and McGLYNN, JJ., concur.




                                             18
                                          NO. 5-04-0082
                                              IN THE

                               APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      GENE ARNETT,                          ) Appeal from the
                                            ) Circuit Court of
         Plaintiff-Appellant,               ) Alexander County.
                                            )
      v.                                    ) No. 02-MR-35
                                            )
      HOMER MARKEL, DAVID TAYLOR,           )
      LESLIE MARKEL, SALLY RAMSEY,          )
      KAREN ELDER, GEORGE WELBORN,          )
      CAROLYN DUMAS, TERRI ANDERSON, )
      NANCY TUCKER, and DONALD SNYDER, ) Honorable
                                            ) Stephen L. Spomer,
         Defendants-Appellees.              ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:   March 2, 2006
___________________________________________________________________________________

Justices:          Honorable Terrence J. Hopkins, J.

                 Honorable James K. Donovan, J., and
                 Honorable Stephen P. McGlynn, J.,
                 Concur
___________________________________________________________________________________
Attorney         Alan Mills, Uptown People's Law Center, 4404 North Broadway, Chicago, IL
for              60640
Appellant
___________________________________________________________________________________
Attorneys        Lisa Madigan, Attorney General, State of Illinois, Laura Wunder, Assistant Attorney
for              General, Gary Feinerman, Solicitor General, 100 West Randolph Street, 12th Floor,
Appellees        Chicago, IL 60601
___________________________________________________________________________________
