# Petition for Writ of Certiorari — Wilson v. Canterino > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0336%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 991 ## Text 89-464") No. 4 vourt, U. * FILED SEP 18 1989 JOSEPH F. SPANIOL, JR. CLERK ~.. ' J SUPREME COURT OF THE UNITED STATES October Term, 1989 GEORGE W. WILSON, Et Al, - - - _ Petitioners, versas PAT CANTERINO, A/K/A PAT WILLIAMS, Et Al, - - - Respondents. \ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DAVID FRIEDMAN* BARBARA WILLET JONES* Legal Aide Society Corrections Cabinet 425 W. Muhammad Ali Blvd. Office of General Counsel Louisville, Kentucky 40202 State Office Building 502/584-1254 Room 500 Counsel for Respondents Frankfort, Kentucky 40601 502/564-2024 Counsel for Petitioners LESLIE W. ABRAMSON University of Louisville School of Law Belknap Campus Louisville, Kentucky 40292 502/588-6385 Counsel for Respondents *Counsel of Record WESTERFIELD-BONTE CO., 619 W. KENTUCKY-—P.O. BOX 3251, LOUISVILLE, KY. QUESTIONS PRESENTED As a result of a finding of a disparity of access to the courts between a class of female inmates and some male inmates in the lientucky corrections system, the Sixth Circuit Court of Appeais affirmed the district court’s remedial order which included affirmative “sex-conscious” relief even though there was no finding of an intent, to discriminate, no member of the class established an in- ability to receive any needed legal services and no such program was provided male inmates. The questions presented are: 1. Whether an order to hire private counsel to assist female inmates is constitutionally improper under the Due Process Clause or the Equal Protection Clause when the remedial order also directed specifie improvements which created identical resources for access to the courts to female and male inmates, 2. Whether affirmative “sex-conscious” relief granted - to female inmates in an action under 42 U.S.C. § 1988 is constitutionally improper when the record is de- void of any evidence of an intent to discriminate and resources identical to those available to male inmates were ordered. 3. Whether the Equal Protection Clause when applied in a female penal institution requires equality rather than parity of treatment among female and male inmates. 4. Whether an order to hire private counsel to assist female inmates is constitutionally improper when the court failed to limit the duties of private counsel and set no standard by which such affirmative relief could end. i LIST OF PARTIES The parties to the proceedings below were the Peti- tioners, George Wilson, Secretary, Kentucky Corrections Cabinet; Betty Kassulke, Superintendent, Kentucky Cor- rectional Institution for Women; Barry Benner, Associate Superintendent, Kentucky Correctional Institution for Women; Gail Chandler, Associate Superintendent, Correc- tional Institution for Women; Raymond Barber, Superin- tendent, Kentucky Department of Education; and the Re- spondents, Pat Canterino, a/k/a Pat Williams: Susie M. Bland, Tina Stone, Wanda Hicks, Joan Starks, Cecilia A. Gonzalez, Shirley LaCourse, as representatives of the plain- tiff class of inmates incarcerated at the Kentucky Correc- tional Institution for Women. iii TABLE OF CONTENTS — PAGE QUESTIONS PRESENTED ...................... i aa cscs ccc cece cc ccccccsvccce ii TABLE OF CONTENTS ......................... iii-vi OPINIONS BELOW .........................2... 1- 4 SSS Sa eee sc cc ceca ccccccccccesecs 4 STATEMENT OF THE CASE .................... 4-11 REASONS FOR GRANTING THE WRIT ......... 12-27 ARGUMENT: I. The Sixth Circuit Opinion Extends the Prin- ciples of the Due Process Clause and the Equal Protection Clause Beyond Constitutional Limits and Conflicts with the Decisions of This Court, the Sixth Circuit and Other Courts. .......... 12-18 A. Affirmative sex-conscious relief is not avail- able in equal protection claims pursued under Section 1983 against state corrections officials without a showing of intent to discriminate. .12-18 II. This Opinion Creates a Conflict with Bounds and Murray, With the Other Circuits and Within the Sixth Circuit. .......................088. 19-25 A. The order to hire private eounsel exceeds the obligations of state officials to provide access ES Ea eT 19-25 III. The Principles of Federalism and Comity Pro- hibit Overbroad and Intrusive Remedies. ...... 25-27 A. This order sets no limits and no standards by which its effectiveness can be reviewed. ... .25-27 CONCLUSION ................ GRREEVGA wh eA USGS? 8 28 iv PAGE (\ “cs ner rr ee ree latoa Petition for Rehearing Denied ..............+. la Opinion of the Court of Appeals for the Sixth CE ann bik cc cha vice ces Swodentesedeweteuye 2a—12a Memorandum Decision of the United States Dis- trict Court for the Western District—Septem- aS Peer USFS. chiles 13a-18a Memorandum Decision of the United States Dis- trict Court for the Western District—Febru- Ary 14, 1983 .... cece ccc es eee e ne ccceenes 19a-—35a Relevant portions of Memorandum Decision of the United States District Court for the West- ern District—July 26, 1982 ..... + vie: Het is Gace 36a—45a Vv TABLE OF AUTHORITIES PAGE Barefield v. Leach, No. 10281 (D. N.M. 1974) ........ 12 Batton v. North Carolina, 501 F. Supp. 1173 (E.D. Se SU Se dAN A weds ehEh ove wenvaccuhancceaiva 12 Bell v. Wolfish, 441 U.S. 520 (1979) ...0.......00... 25 Bounds v. Smith, 430 U.S. 817 (1977) ... i » « ite Wi Bie ' 19, 21, 23, 24 Bukari v. Hutto, 487 F. Supp. 1162 (E.D. Va. 1980) .. 12 Campbell v. Miller, 787 F. 2d 217 (7th Cir. 1986), cert. SE ry IT IS. Bk0a 6s Kcco ds sw dee oe 21 Canterino v. Wilson, 546 F. Supp. 174 (W.D. Ky. SEE enn okedsenvrinds be Rdbet take daneondars 2,5, 18 Canterino v. Wilson, 869 F. 2d 948 (6th Cir. 1989)... 18 Cepulonis v. Fawr, 732 F, 2d 1 (1st Cir. 1984) ....... 21 Cruz v. Hauck, 762 F, 2d 1230 (Sth Cir. 1985) ....... 21 Cruz v. Hauck, 627 F. 24.710 (Sth Cir. 1980) ........ 21 Dawson v. Kendrick, 527 F. Supp. 1252 (S.D. W.Va. EE aAlh et dina Ace AANA dhs CERERAEY OG sek oes wwe 12 Glover v. Johnson, 478 F. Supp. 1075 (E.D. Mich. 1979), aff'd sub nom. Cornish v. Johnson, 774 F. 2d Re en es SI 5 bo « Coch as Os Ce bcd ew ee en 10, 13, 18 Gutierrez v. Mun. Ct. of S.E. J wiiotal Dist., 838 F.2d BEE ST EEE ec Ge sa bib née bee wes chatees 14 Harrington v. Holshouser, 741 F. 2d 66 (4th Cir, 1984) 21 cert. den’d 442 U.S. 911 (1979) ................. 22 Holt v. Pitts, 702 F. 2d 639 (6th Cir. 1983) .......... 11, 24 Hooks v. Wainwright, 775 F. 2d 1433 (11th Cir. 1985). 22 Hoptowitt v. Ray, 682 F. 2d 1237 (9th Cir. 1982) .... 25 Johnson v. Avery, 393 U.S. 482 (1969) ........0...... li Kelsey v. Minnesota, 622 ¥. 2d 956 (Sth Cir. 1980)... 21 Kendrick v. Bland, 740 F. 2d 432 (6th Cir. 1984) ....11, 26 Kendrick v. Bland, 541 F. Supp. 21 (W.D. Ky. 1981).. 2,5 Kentucky Dept. of Corrections v. Thompson, 109 8. Ct. SE REE kG ck cdiaCiansGaakaeescauckel oeides 2 vi Lindquist v. Idaho State Board of Corrections, 776 Be ee TEE GRD, MOUND cans vacicarececscesecs 21-22 Local 28 Sheet Metal Workers’ Intern’l. Ass’n v. EEOC, 478 U.S. 421 (1986) ........ ccc cecceeess 16 McMurry v. Phelps, 533 F. Supp. 742 (W.D. La. 1982), rev'd on other grounds, Thorne v. Jones, 765 F. 2d 1270 (5th Cir. 1985) ....... Se eeu’: Se Ceck hetc of 276 acres, seven of which are fenced and contain the main institutional buildings. One building, opened in 1938, contains the dormitories, cafeteria, kitchen, infirmary, aca- demic school, institutional offices, admissions and orienta- tion unit, canteen, laundry, special management unit (cell- block), and law library (PX 55, DX 8). An annex to this building, constructed more recently, houses the vocational education program. In addition to the main building, KCIW has an honor cottage, a chapel, a recreation build- ing called the “Barn”, and a minimum security unit known as “staff house.” The institution was designed to house a maximum of 110 inmates. Its population reached a modern high of 145 in 1976, at which time the state opened a new minimum security institution in northern Kentucky for women to relieve overcrowding at KCLW. That minimum security 38a facility, the Daniel Boone Career Development Center (DBCDC), which usually housed around thirty women, (DX 22, p. 5), was closed in September, 1981 for budgetary rea- sons.” The prisoners at DBCDC were all transferred back to KCIW. Thus KCIW houses all minimum, medium and maximum security female offenders in Kenutcky. Most inmates at KCIW (63%) are between 18 and 30 years old. The median education level is tenth grade. About two-thirds of the inmates come from broken homes and almost three-quarters were responsible for at least one dependent child before incarceration. All but a handful were the sole or primary support for at least one dependent. A large majority (74%) of KCIW inmates were being in- carcerated for the first time. Property crimes of theft, fraud and forgery comprise nearly half or all convictions. Murder and manslaughter are the next most frequent crimes, followed by drug related offenses. (See Peachee, “A Description of Female Offenders at KCIW,” PX 5). KCIW has operated since 1977 under a Levels System in which all institutional privileges are allocated on the basis of behavior and seniority. This system is all encompassing and is at the heart of plaintiffs’ allegations of sex-based disparities in conditions of confinement. The court has divided the case into three main parts: the Levels System, vocational education and training, and general conditions of confinement. Issues concerning the classification procedures used at KCLW overlap into each of these areas, but some aspects of the classification system wil be addressed separately. Although the findings and conclusions which follow dic- tate that substantial changes must be made at KCIW, this should not be taken as an adverse reflection on Superin- tendent Kassulke, Associate Superintendent Chandler or the other highly committed staff people at the institution. Officials at KCIW, contrary to the case in so many condi- 39a tions of confinement lawsuits, have exhibited great dedi- cation to their jobs and genuine concern for the welfare of the inmates in their charge. The Court respects the efforts of these officials in a difficult job. I. FINDINGS OF FACT (Findings in their entirety are not included—only those findings which relat@ to this petition are reprinted) 5. Access To Courts The law library at KCIW was woefully inadequate when this lawsuit was initiated. The Supreme Court Reporter had not been updated in over six years; of the nearly 400 Federal Reporters published since 1960, only 22 were in the KCIW law library; over one-third of the Kentucky Deci- sions from the Southwest Reporter, Second Series, were missing; there were no Shepard’s Citations. (See Teitle- baum Testimony, PX 204). Since the initiation of this suit, defendants have made a significant effort to improve the holdings of the KCITW law library. (Joint Exhibit 1). The collection still does not include many basic books which must be provided at KSR and KSP under the Consent De- cree in Kendrick and Thompson. (PX 4, § 8). The law library is open to inmates from 12:30 p.m. until 3:15 p.m., Tuesday through Friday. Since these hours largely overlap withthe afternoon program hours and work:shift, the library is available only a few minutes each day unless an inmate gets permission to miss class or work. (Testimony of Carol Jarvis, and Elizabeth Chandler, Assoc. Supt.). One attorney from the Kentucky Office for Public Ad- vocacy visits KCIW for a half day every three weeks to assist inmates with criminal appeals. This attorney does not assist in civil matters or prison disciplinary proceed- ings, although most legal problems at KCTW concern civil 40a matters, such as child custody. (Jarvis Testimony). KSP has three full-time attorneys serving around 900 inmates. (Parke Testimony). KSR has two full-time attorneys and one part-time, serving 1500 inmates a total of 96 attorney hours per week. (Teitlebaum Testimony). (See also, PX 4, Consent Decree § 3). (Relevant Portions of Conclusions of Law) 5. Access to Courts As noted in the findings of fact, defendants have made substantial progress in bringing their law library into com- plaince with minimum standards. Here again, however, there is still a substantial disparity between the resources available to women inmates and those provided for males under § 8 of the Kendrick and Thompson Consent Decree. To bring access to courts to Constitutional parity, defend- ants must 1) supply a library equivalent to those required for males at KSP and KSR, 2) substantially increase the amount of- non-program time the library is open, and 3) provide the equivalent of at least one-half-time attorney, who will assist inmates in all areas, including habeas corpus and other civil matters, in which they have a demonstrated need. These minimal steps are required by both the equal protection clause and the decision of the Supreme Court in Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, —_. L. Ed. 2d — (1977). 4la UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE Civil Action No. 80-0545-L(J) Pat CANTERINO, et al., : - : - - Plaintiffs, AND Unitep States or America, - - Plaintiff Intervenor, v. Grorce W. WILson, et al., - - - : Defendants. ORDER—July 26, 1982 “or the reasons stated in the Memorandum Opinion en- tere. this day, Ir Is OrnDERED AND ADJUDGED: 1. Defendants shall have a period not to exceed ninety days in which to revise their policies on institutional priv- ileges in a manner that will ensure female inmates are afforded the same normal institutional privileges as male inmates. Thereafter, defendants are permanently enjoined from operating and enforcing the Incentive Levels System, 5th revision, entered into evidence as plaintiffs’ Exhibit 122. 2. On or before October 15, 1982, defendants shall sub- mit a plan for improving the opportunities for female in- mates in the area. of vocational education, on the job train- ing, prison industries and community release programs in a manner consistent with the findings of fact and conclu- sions of law entered this day. Plaintiffs and the United 42a States shall file their objections to defendants’ plan by November 15, 1982. The Court will then set a date for the parties to meet and confer in an effort to resolve any differ- ences which may exist, and will thereafter hold a hearing on any objections which cannot be resolved. 3. Defendants shall take steps to reduce overcrowding in the Admissions and Orientation Unit and to eliminate the practice of housing inmates classified to Admissions and Orientation in the infirmary as soon as possible. No later than November 1, 1982, defendants shall submit to the Court their plan for bringing housing at KCIW into compliance with the American Correctional Association standards cur- rently enforced in the male institutions. Plaintiffs shall have thirty days after the submission of this report to file their objections and the Court will schedule a hearing on any objections which cannot be resolved by agreement. 4. Defendants are directed to distribute to each inmate brought before the Adjustment Committee a document ex- plaining in plain language the inmate’s minimum due proc- ess rights which are embodied in defendants’ Internal Man- agement Directives. This document shall be served on inmates at least twenty-four hours prior to their Adjust- ment Committee hearing. 5. Defendants shall make the following materials avail- able in the KCIW law Hbrary: Federal Materials 1. West’s Supreme Court Reports, or Lawyer’s Edition, 1960 and forward 2. Federal Second Reporter, 1960 and forward 3. Federal Supplement Reports, 1960 and forward 4. United States Code Annotated, West Publishing Company : (a) Index volumes 450 (b) Constitution of the United States volumes (c) Title 18 volumes (d) Title 28 volumes (e) Title 42 volumes Federal Practice Digest, Second Series qr 6. Paperback edition--Federal Rules of Civil Proced- ure, Evidence, Appellate Procedure and Title 28, West Publishing Company Paperback edition—Federal Rules of Criminal Pro- cedure, Evidence, Appellate Procedure and Title 18, West Publishing Company 8. Shepard’s United States Citations 9. Shepard’s Federal Second and Federal Supplement Citations mJ . Kentucky Materials 1. Kentucky Revised Statutes 2. Kentucky Digest, West Publishing Company 3. Southwestern Report, 2d Series, Kentucky cases, en- tire series, for the years preceding the publication of S.W.2d, either Southwestern Reporter of the official reports of the Kentucky Court of Appeals 4. Shepard’s Kentucky or Southwestern Reporter Cita- tions Miscellaneous Publications 1. Corpus Juris Secundum: (a) Habeas Corpus volumes (b) Appeal and Error volume- (c) Constitutional Law volumes 2. Black’s Law Dictionary 3. Cohen, Legal Research im Nutshell dha > Criminal Law Reporter Israel, Criminal Procedure in a Nutshell Murrell, Kentucky Criminal Law Sokol, Federal Habeas Corpus Prison Law Monitor Wright, Federal Courts 10 Potts, Prisoners Self-Help Litigation Manual 11. ACLU Handbook, The Rights of Prisoners 12. Bronstein, Hirschkop, Prisoners’ Rights, 1979 The materials listed in this paragraph shall be kept up to date according to publishers revisions. Defendants are further directed to keep the law library at KCIW open and staffed during at least fifteen (15) hours of non-pro- gram time per week. Defendants shall make the services of attorney available to inmates at KCIW on a part-time basis for at least twenty hours per week. - Pr SP FF 6. Defendants shall take steps immediately to open the ¢ yard for female inmates at KCIW an amount of time sub- ~ stantially equivalent to the hours in which the yard is open to male inmates at KSR and KSP. 7. Defendants shall make available to all female in- mates necessary items for personal hygiene at no charge in a manner equivalent to their provisions for male inmates in this area. 8. Defendants are enjoined from enforcing their inter- pretation of K.R.S. 197.140 in a manner which operates as a blanket prohibition against all minimum security activi- ties, and are directed to submit to the Court a revision of the applicable Internal Management Directives in aeccord- ance with the Court’s findings and conclusions on this issue. 9. Defendants shall institute a default provision in their grievance procedure for women at KCIW similarly toa situated to men at KSP and KSR, requiring favorable ac- tion on grievances not acted upon within the prescribed time limits. 10. This Court will retain jurisdiction until it is satis- fied that the terms of the memorandum opinion and order in this action have been complied with in all respects. Dated: July 26, 1982 (s) Edward H. Johnstone Edward H. Johnstone _ Judge, United States District Court --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0336%3A1. Public record. Not legal advice.