In the Matter of the Petition by NATIONAL LAWYERS GUILD, SAN FRANCISCO BAY AREA CHAPTER 558 Capp Street, San Francisco, California 94110 Denial of Application for Second-Class Mail Privileges for "THE CONSPIRACY" P.S. Docket No. 3/127May 5, 1975
William A. Duvall Chief Administrative Law Judge
Martin Fassler, Esq., 942 Market Street, Suite 608, San Francisco, California, for Petitioner Grayson M. Poats, Esq., Law Department, U.S. Postal Service, Washington, D. C., for Respondent
"The Conspiracy" is the monthly publication of the Petitioner, The San Francisco Bay Area Chapter of the National Lawyers Guild, the Petitioner. The National Lawyers Guild is a nationwide organization comprised of attorneys, law students, legal workers, and others. It was organized in February, 1937. The Bay Area Chapter was organized a few months thereafter. It now includes members who live or work in San Francisco, Alameda, Contra Costa, Marin, San Mateo, Solano, and Sacramento counties, all in northern California. It is a nonprofit organization, incorporated in the state of California.
On June 14, 1974, the Petitioner applied for second-class mail privileges for the publication known as "The Conspiracy." By letter dated December 31, 1974, the Manager of Mail Classification Division, Finance Department, United States Postal Service, the Respondent, advised the Petitioner that it was proposed to deny the application. The Petitioner was advised that the application would be denied unless within 15 days the Petitioner filed information, with supporting evidence, to show that the requirements of law had been met, and the Petitioner was given the alternative of filing a petition appealing the proposed denial. The Petitioner did file such a petition on appeal, and the matter came on for hearing in due course.
At the hearing it was agreed that there was one, and only one, issue in this proceeding, and that issue may be stated as follows:
Is the Petitioner a "strictly professional society" within the meaning of Section 132.232 of the Postal Service Manual? That section of the Manual adopts and paraphrases the provisions of law stated in Section 4355(a)(8) of Title 39, United States Code.
In Article II of the constitution of the National Lawyers Guild, it is stated as follows:
"The following persons shall upon application be admitted to membership without regard to sex, sexual preference, age, color, race, religious or political belief or affiliation, formal educational level, or condition of restraint within any institution," and then it enumerates the following four categories of persons:
Lawyers, law students, legal workers, jailhouse lawyers. Each of these categories is defined.
Lawyers are defined as "any person who at the time of application for membership is authorized to practice law anywhere."
Law students are defined as being persons "who attend or have completed law school."
A legal worker is defined as "any person who for at least six months of the twenty-four months immediately preceding her or his application for membership has been regularly working for: 1. offices of the National Lawyers Guild, 2. law offices, legal collectives and communes, and legal services organizations, 3. community legal defense offices, and 4. law schools."
A jailhouse lawyer is defined as being "jail or prison inmates who provide legal assistance for other prisoners, applying the following criteria: 1. that the applicant be involved in the preparation of legal documents for prisoners as a regular and specialized occupation; 2. that the applicant have a reputation in the prison as a 'jailhouse lawyer,' and 3. further criteria and further definition of the above criteria as may be worked out by representatives of each chapter in consultation with prison lawyers and the applicant."
The membership of the Petitioner consists of approximately 700 members. It was stated by a witness who appeared on behalf of the Petitioner that the membership is approximately evenly divided between lawyers and nonlawyers. There is also in the record a letter, dated July 7, 1974 (Ex. R-4), from a Stephen Kaus, Esq., who at that time was writing in behalf of the Petitioner, to the postal authorities with respect to the application for second-class mail privileges for the publication. In that letter it is stated that there were, as of July 7, 1974, approximately 700 members, of whom 450 are attorneys, 50 are legal workers, 200 are law students, and 200 members who are in prison and who are considered full members. (The total of these figures is 900.)
This case obviously turns on the definition of the words "strictly professional societies." The position of the Petitioner is that the character of a society or an organization should be determined by examination of the purposes for which the organization exists and the manner in which it functions.
The Postal Service, on the other hand, takes the position that to determine the nature of an organization its purposes should be examined, and the manner in which it functions should be examined, and that, in addition thereto, the qualifications of the membership and the requirements for membership must be taken into consideration.
If the meaning of the word "professional" is limited to those persons who have specialized training and education in a particular field, and if they have functioned, or do function, in that particular field, and if they have been granted official recognition as being practitioners in that particular field, then, of course, the Petitioner in this case does not come within that definition.
The latter definition is one which the Postal Service does apply in addition to considering the purposes and functions of an organization. It is not unreasonable to look at both facets of this question; and since the consideration of both facets is a reasonable approach to the problem, that approach is one which the Postal Service may appropriately follow. In view of the foregoing circumstances, it is concluded that the Petitioner is not a strictly professional society within the meaning of Section 132.232 of the Postal Service Manual and subsection (a)(8) of 39 U. S. Code, Section 4355.
The decision of the Respondent to deny the application for second-class mail privileges for Petitioner's publication was correct and it is sustained.
Proposed findings of fact and conclusions of law have been submitted by counsel for both parties to those proceeding, and those proposed findings of fact and conclusions of law are adopted to the extent previously indicated. Otherwise, those proposed findings of fact and the conclusions of law are rejected as being contrary to, or unsupported by, the evidence and the law applicable to this case or because they are immaterial.
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