Opposition Brief — Hoevenaar v. Lazaroff

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No. 04-534

In The Supreme Court Of The United States

CORNELIUS WAYNE HOEVENAAR,

Petitioner,

¥.

ALAN LAZAROFF,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

JIM PETRO

Attorney General of Ohio

DOUGLAS R. COLE*

State Solicitor

*Counsel of Record

STEPHEN P. CARNEY

Senior Deputy Solicitor

TODD R. MARTI

Assistant Solicitor

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax

Counsel for Respondent

QUESTION PRESENTED

Does application of the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”), codified

in relevant part at 42 U.S.C. § 2000cc-1, to prisons violate

the Establishment Clause or other constitutional limitations

on Congress’s powers?

Respondent submits that this case should be held,

without further action, pending disposition of Cutter v.

Wilkinson, case No. 03-9877. Respondent also submits that

Petitioners’ unexplained request for a stay should be denied.

STATEMENT OF THE CASE

Petitioner Hoevenaar is an Ohio prisoner serving a

life sentence. Respondent Lazaroff, the warden of the:prison

where Hoevenaar is housed, required him to comply with an

Ohio regulation requiring prisoners to keep their hair snort.

Hoevenaar, who professes a Native American religion

that requires its adherents to refrain from cutting their hair,

sued, claiming that enforcement of the regulation violated his

rights under RLUIPA and the Free Exercise Clause of the

First Amendment. He also sought a preliminary injunction

against enforcement of that regulation. —

A hearing was held where the State showed the

regulation has two primary purposes. One is to thwart escape

attempts by limiting inmates’ ability to elude recapture by

cutting their otherwise long hair in order to change their

appearance. The other is to suppress contraband by limiting

inmates’ ability to hide small items in their hair. Pet. at A21-

A25

The evidence showed that Hoevenaar has an

unusually extensive record of both behaviors. He has been

involved in three escape attempts, the most recent being in

2002. It also showed that he has a long history of possessing

contraband. /d. at A37.

The district court concluded that, given those facts,

enforcement of the regulation was reasonable under the

standard set in Turner v. Safley, 482 U.S. 78 (1987). It

therefore held that Hoevenaar had no prospects for success

on his First Amendment claim and denied injunctive relief on

that basis.

However, that court found that that Hoevenaar had a

strong likelihood of success under RLUIPA because it felt

that there were less restrictive ways to deal with the escape

and contraband problems motivating the grooming

regulation. More specifically, it found that those concerns

could be adequately addressed by granting Hoevenaar an

individualized exemption allowing him to wear some, but not

all, of his hair long. It therefore entered an injunction

requiring that he be permitted to wear a Kouplock, a two by

two inch column of hair, beyond the length allowed by the

grooming regulation.

Lazaroff took an interlocutory appeal under 28 U.S.C.

§ 1292, arguing, inter alia, that the district court misapplied

RLUIPA’s least restrictive means requirement. Whiie that

appeal was pending in the Sixth Circuit, that court held in

Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), that

RLUIPA violates the Establishment Clause. The panel

hearing Hoevenaar’s case concluded that the injunction must

be reversed because Cutter removed the sole basis for that

relief. Hoevenaar v. Lazaroff, 108 Fed. Appx. 250 (6" Cir.

2004). That decision made no independent analysis of

RLUIPA’s constitutionality

This petition followed.

DISCUSSION

Respondent Lazaroff submits that this case should be

held, without further action, pending the outcome of Cutter.

Also, the Sixth Circuit’s decision should not be stayed.

A. Review of the issue is warranted, but the Court is

already reviewing this issue in Cutter.

Hoevenaar correctly states that the circuits are split on

RLUIPA’s constitutionality. That split concerns an important

question of federal law because of RLUIPA’s significant, and

deleterious, effect on day-to-day prison operations across the

country. The question presented is therefore worthy of

review and will be resolved in Cutter.

B. Consolidation with Cutter would complicate that

case with no offsetting benefit.

However, Hoevenaar’s request to consolidate his case

with Cutter should be denied for two reasons.

First, it would complicate the already complex

proceedings in Cutter. That case involves three groups of

prisoners pressing distinct types of claims and two sets of

counsel defending RLUIPA’s constitutionality. Briefing is

already underway, and due to various extensions, Cutter’s

schedule has already been modified twice. Folding this case

into those proceedings would inject new parties, new facts

and another set of counsel, and likely require further

modification of the Cutter case schedule. That would unduly

disrupt Cutter.

Second, no offsetting benefit would result from

consolidating this case with Cutter. The Cutter record is fully

developed, both legally and factually, and this case provides

nothing new.

In short, this case would add nothing but complexity

and delay to Cutter. That counsels strongly against

consolidation.

C. No stay is warranted.

Finally, Hoevenaar’s request for a stay should be

denied because he has not explained why one is needed. Rule

23.3 requires that he “set out with particularity” the grounds

for that relief but he has made no argument, a particularized

or otherwise, in support of a stay. That unexplained request

for extraordinary relief should be denied.

CONCLUSION

For the above reasons, the Court should simply hold

this case pending resolution of Cutter. The Court should

deny Petitioner’s unsupported request for a stay.

Respectfully submitted,