Opposition Brief — Coughlin v. Benjamin

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Ny Commissioner, New York State Depé ry

STEPHEN DALSHEIM, Superintender ‘a

EUGENE S. LeFEVRE,. Superint ar

and HAROLD SMITH, Super ints

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ROL DUNKLEY, I RANK FORREST, BARRINGROH

MARTIN SPENCE, on behalf of ot} Streco

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eee on Poughkeepsie, New York 1260:

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2 SNe Attorneys for Respondents

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CONTENTS

SABLE OF AUTHORITIES « «66s sew

QUESTIONS PRESENTED..........-.

STALE. OF THe CASE ss sé 6% ess

A. The Religious Belief.

B. Procedural History...

Gs pipet HE oh. 6 A Ae ore ae

Ds The Decisions Below...

ARGUMENT

POINT I THE COURTS BELOW I}

THE DOCTRINE OF IS

POINT II THE SECOND CIRCUIT

APPLIES THIS COURT

EVIDENCE IN THE RE:

CONFLICT WITH DECI

CIRCUITS

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TABLE OF AUTHORITIES

Page

CASES

Benjamin v. Coughlin

643 F.Supp. 351 (S.D.N.Y. 1986), 708 F.Supp.

570 (S.D.N.¥. 1989), affd., 905 F.2d 571

(2d Cir. 1990). oe. @ 2 2 ¢.8 8.6 6.6.0.6 entree eee ee ## © # © © @ @ TRETEEC CUT Le X.

Commissioner of Internal Revenue v. Sunnen

cP ee ee SS errr re Ter ere ere Tee ee ee ee ee eee rir, Fe

Fromer v. Scully

649 F.Supp. 512 (S.D.N.¥. 1986), aff'd, 817

F.2d 227 (2d Cir. 1987), vac. and remanded,

484 U.S. 909 (1987), on remand, 837 F.2d 1086

(2d Cir. 1987), on remand, 693 F.Supp. 1536

(S.D.N.Y¥:; 1988), rvsd., 874 F.2d 69 (2d Cir. 1989)....... eoeed

Irving National Bank v. Law

Ue ee ee Se a ee ae ere 1l

Koch v. Consolidated Edison Co. of New York

a ee ee Re ae 6 ak ne OER ER Oi oe be 0 00 0b 6 00 ewes sone

Lewis v. Commissioner of the Department

of Correctional Services

No. 85-11167 (N.Y. Sup. Ct. Queens Co. 1985),

aff'd sub nom. People v. Lewis, 115 A.D.2d

597 (2d Dept. 1985), aff'd, 68 N.Y.2da 923

ra ee ae en ae ee renee ae ro Pe Pe Pe ee © |

Montana v. U.S.

SA ee a RT ic oon ca eh aw CWS ead ees Pere rrey 7 ee

O'Lone v. Estate of Shabazz

482 Us. 342 CAPE ccc ease ct cee cece nnseateeesecescece ss spPaSeils

Overton v. Department of Correctional Services,

131 Misc.2d 295 (Sup. Ct. Kings Co. 1986),

aff'd, 133 A.D.2d 744 (2d Dept. 1987), appeal

GiSBiS80G O86 BOOT, TF2 N.Y. SE BIG (AGGCE) ooiiccccccncesccecsd 6,8

ate

Parklane Hosiery Co. v. Shore

Moe Cats SOE CRP S) bac ee ks bese rsccciess

Pollack v. Marshall

845 F.2d 656 (6th Cir. 1988)..... eceee

Schellong v. I.N.S.

S05 F.2G G35 (7tH Cir. 1986) ..sceendes

Southern Pacific Ry Co. v. U.S.

Bee Uses E CAPRT) ic ccc estes seewiseses

Turner v. Safley

Pe Meee. Fe CARTS an 60 66066608 0 8 0 0 58 8

United States v. Stone & D. Co.

SN Oe owt.) er rere

U.S. V. Mendoza

2 ee ie ae) TS ere eee

U.S. v. Moser

MUM Nice OOO CI988S «6 acuc ccs ch um cseeas

Other Authority

1B Moore's Federal Practice par. 0.443[5.-

Restatement (Second) of Judgments

BOG. a2? COMMENT C (2962)... ee wee ec naes

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QUESTIONS PRESENTED

1. Does the decision of the Second Circuit enjoining

the Department of Correctional Services (DOCS) from cutting

Rastafari inmates' hair in violation of their sincerely held

religious beliefs comport with this Court's decisions in Turner

v. Safley, 482 U.S. 78 (1987), and O'Lone v. Estate of Shabazz,

482 U.S. 342 (1987)?

2. Do the decisions of the courts below precluding

petitioners from relitigating the identical issue that they had

previously lost in the state courts present an unsettled question

of national importance?

STATEMENT OF THE CASE

A. The Religious Belief

Rastafari as a religion was founded in Jamaica, West

Indies, following the coronation of Haile Selassie I as Emperor

of Ethiopia in 1930. The religion has existed continuously since

that time.

It is a fundamental tenet of Rastafari that the hair be

neither cut nor combed. As a result, their hair forms into

ropelike strands that are called dreadlocks. Creadlocks are a

consecration and_a covenant with God. The proscription has its

source in the Old Testament, Numbers, ch. 6, and Leviticus, ch.

21. Rastafari believe that these two passages require them to

take the "vow of the Nazarite" never to cut their hair. Dread-

td

locks are a consecration and a covenant with God.

B. Procedural History

Respondents commenced this action in 1979. While the

case was pending, Mr. Lewis and Mr. Overton moved in the state

courts to enjoin the initial haircut upon entry into the New York

State prison system. Lewis v. Commissioner of the Department of

Correctional Services, No. 85-11167 (N.Y. Sup. Ct. Queens Co.

1985), aff'd sub nom. People v. Lewis, 115 A.D.2d 597 (2d Dept.

1985), aff'd, 68 N.Y.2d 923 (1986), Overton v. Department of

Correctional Services, 131 Misc. 2d 295 (Sup. Ct. Kings Co.

1986), aff'd, 133 A.D.2d 744 (2d Dept. 1987), appeal dismissed as

moot, 72 N.Y¥.2d 838 (1988). The crux of the Court of Appeals'

holding in Lewis is:

Plaintiff urges that the regulation must be

stricken because it does not constitute the

"least intrusive means" of satisfying defend-

ant's administrative concern"; defendant 7

contends that the regulation should be upheld

because it does not represent an "exaggerated

response" to his legitimate penological inter-

ests. Both lower courts found that, as to

plaintiff, the asserted objective of the

regulation in issue could be fully achieved

Simply by pulling his hair back when the

initial identification photographs are taken.

This affirmed finding is supported by the

testimony of a deputy commissioner in the

Department of Correctional Services; and a

sufficient showing was not made here of admin-

istrative burden. In this instance, there-

fore, defendant's interest can be readily

satisfied without any interference with plain-

tiff's beliefs. Thus, whichever test is

2

adopted, on this record the regulation as

applied to plaintiff needlessly infringes on

his beliefs, and cannot stand.

While Lewis was pending in the Court of Appeals the

District Court issued its preliminary injunction based upon

doctrines of issue preclusion. Benjamin v. Coughlin, 643 F.Supp.

ia

351 (S.D.N.Y. 1986).

In June, 1987, petitioners moved to vacate the prelimi-

nary injunction on the ground that this Court's decisions in

Turner v. Safley, 482 U.S. 78 (1987), and O'Lone v. Estate of

Shabazz, 482 U.S. 342 (1987), changed the applicable legal stand-

ard. The District Court reserved decision on the motion until

after trial, and heard evidence on all plaintiff's claims, in-

cluding the haircut issue. on

Based on the evidence presented, the District Court

adhered to it's earlier ruling on the preclusion question, and

held that respondents satisfied their burden under Safley/Sha-

bazz. Benjamin v. Coughlin, 708 F.Supp. 570 (S.D.N.Y. 1989).

The Court of Appeals affirmed. Benjamin v. Coughlin, 905 F.2d

571 (2d Cir. 1990).

Cc. The Trial

In a four day bench trial the District Court heard

testimony of several class members, including Messrs. Lewis and

Overton. The court viewed photographs of Messrs. Lewis and Over-

ton with their hair tied back, as well as hundreds of photographs

introduced by petitioners, of prisoners both before and after

their initial haircut.

Deputy Commissioner Coombe testified in both Benjamin

and Lewis. He contradicted himself several times, and contra-

dicted testimony that he gave in Lewis. He also contradicted

testimony that he gave in Fromer v. Scully, 649 F. Supp. 512

(S.D.N.¥. 1986), aff'd, 817 F.2d 227 (2d Cir. 1987), vac. and

remanded, 484 U.S. 909 (1987), on remand, 837 F.2d 1086 (2d Cir.

1987), on remand, 693 F. Supp. 1536 (S.D.N.Y¥. 1988), rvsd., 874

F.2d 69 (2d Cir. 1989), that, together with fingerprints, it is a

person's facial structure that is the primary means of identifi-

cation. Based on the photographs, and it's observation of Com-

missioner Coombe, the court found his testimony unpersuasive.

That finding should not be disturbed on appeal.

D. The Decisions Below

After reviewing the evidence, including the -photograph

introduced by both petitioners and respondents and the testimony

of Commissioner Coombe, the district court found that tying the

hair back is an accommodation that satisfies prison authorities’

security concerns. It further found that the accommodation has

no more than a de minimis impact on valid penological interests.

The Second Circuit said that “after reviewing the

voluminous record and hearing testimony from both Rastafarian

inmates and prison officials the district court determined that

pulling plaintiffs' hair back met the purported security needs."

Benjamin, 905 F.2d at 576-577. It then held that "tying plain-

tiffts' hair in pony tails adequately accommodates the interests

of prison authorities in revealing an inmate's cranial and facial

features." Id. at 577.

The Second Circuit also found that "defendants present-

ed much of the same evidence" to the state courts in Lewis that

they presented to the District Court here. Id. at 576. Thus, it

found that there was a substantial overlap of evidence and argu-

ments both in courts, citing Restatement (Second) of Judgments

sec. 27 comment c (1982), and Koch v. Consolidated Edison Co. of

New York, 62 N.Y¥.2d 548 (1984). Likewise, the district court, in

it's decision after trial, found that the same evidence was

presented in both cases, and found no reason to alter it's earli-

er decision on the preclusion question.

Finally, the Second Circuit considered petitioners

arguments that this Court's decisions in Safley and Shabazz

worked an intervening change in the law. The Court noted that

“Lewis considered two levels of scrutiny and found that even

under a standard more burdensome to the plaintiffs than the

Turner/Shabazz reasonableness standard, plaintiffs would

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that was more burdensome to respondents than the subsequent

Safley/Shabazz reasonableness standard. In this court, petition-

ers urge error primarily on the last point, and argue that an

intervening change in the law renders issue preclusion inapplica-

ble.

The Second Circuit's decision is in accord with earlier

decisions of this Court, and presents no issue of national impor-

tance. As petitioners recognize, the question of the preclusive

effect to be given to the prior state court judgments is deter-

mined by the law of New York. 28 U.S.C. 1738. Thus, the ques-

tion presented does not affect the entire nation, nor even all of

the Second Circuit. Thts question of New York law can best be

answered by the lower courts, who are more accustomed to deciding

such questions than is this Court.

| The basic rule of collateral estoppel was stated long

ago by the Court in Southern Pacific Ry. Co. v. U.S., 168 U.S. 1,

48 (1897), cited in U.S. v. Moser, 266 U.S. 236, 241 (1924):

The general principle announced in numerous

cases is that a right, question, or fact

distinctly put in issue and directly deter-

mined by a court of competent jurisdiction, as

a ground of recovery, cannot be disputed in a

subsequent suit between the same parties or

their privies; and even if the second suit is

for a different cause of action, the right,

the question, or fact once so determined must,

as between the same parties or their privies,

be taken as conclusively established, so long

as the judgment in the first suit remains

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tax years. For that reason the present case is closer to Monta-

3. At p. 7 of the petition, DOCS purports to quote the statement

of the law from Sunnen. That quote is truncated and taken out of

context. A full reading shows that it concerns tax liability, and

is concerned with preventing tax inequity among similarly situat-

ed taxpayers. For instance, they quote the Court as saying:

The principle of collateral estoppel...is

designed to prevent repetitious lawsuits over

matters which have...remained substantially

static, factually and legally. It is not

meant to create vested rights in decisions

that have become obsolete or erroneous...

while the Court actually said:

But a subsequent mcdification of the signifi-

cant facts or a change or development in the

controlling legal principles may make that de

termination obsolete or erroneous, at least for

future purposes. If such a determination is

then perpetuated each succeeding year as to the

taxpayer involved in the original litigation,

he is accorded a tax treatment different from

that given to other taxpayers of the same

class. As a result, there are inequalities in

the administration of the revenue laws, dis-

Ccriminatory distinctions in tax liability, and

a fertile basis for litigious confusion.

Compare United States v. Stone & D. Co., 274

U.S. 225, 235-236. Such consequences, however,

are neither necessitated nor justified by the

principle of collateral estoppel. That princi-

ple is designed to prevent repetitious lawsuits

over matters which have once been decided and

which have remained substantially static,

factually and legally. It is not meant to

create vested rights in decisions that have

become obsolete or erroneous with time, thereby

causing inequities among taxpayers.

To apply issue preclusion here will not provide "a

fertile basis for litigation confusion" but will grant uniform

treatment of all persons who have beliefs similar to plaintiffs.

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tringent standard than Safley/Shabazz. Those decisions would

> bearing on the court's decision.

Petitioners here argue that the New York Court of Ap-

tatement that "whichever test ["least restrictive" or

ated response") is adopted, on this record the regulation

plaintiff needlessly infringes on his beliefs, and

tand", 68 N.Y.2d at 925, is dicta as concerns the exag-

sponse test, and was not essential to the decision.

t Say, issue preclusion does not apply. But, the

As the Seventh Circuit said in Schellong v.

65 ir. 1986):"...a judgment which is

ernative yrounds is an effective adjudication as to

aterally conclusive as to both." citing Irving

Law ] F.2a 2] ie 2a Cir 1926), See also 1B

the Lewis irt's holding was not dicta. i

Le he que lon under the more strict standard, whic

-ion of the "least restric-

est was dicta, because it was not necessary for

t m of the case once the court found that under the exag-

ated response test the haircut rule was unconstitutional.

The New York Court of Appeals found that the same

would support judgment for plaintiff under either stand-

ard. If that evidence satisfied the exaggerated response test,

it must of necessity satisfy the Safley/Shabazz test.

POINT II

THE SECOND CIRCUIT'S DECISION CAREFULLY

APPLIES THIS COURT'S PRECEDENTS TO THE

EVIDENCE IN THE RECORD. THERE IS NO

CONFLICT WITH DECISIONS FROM OTHER

CIRCUITS.

Petit ymnner's argue that the onstitutiona lissues

should be reviewed by this Court for two reasons First, the

state that the Second Circuit failed t follow the appropriate

analysis, as set forth in the Safley and Shabazz decisions.

Petitioners also claim that the Circuit Court's spinion in ti!

case is inconsistent with decisions rendered by other Circuit

COUTTS. Neither argument istifies petitioners' r 1 that

this case is wortt »f the irt's review

A The se : Ciz 1t rrectly f wed the afle abarz

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analysis

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Under afley/Shabazz, the court must weigh four fact S

when deciding whether prison policies are unconstitutional.

These are: (1) whether there is a valid, rational connection

between the regulation and a legitimate governmental interest;

(2) any alternative means available to the prisoners for exercis-

ing the right; (3) the impact accommodation of the right will

have on guards, other inmates and prison resources generally; ana

4) the existence of any ready alternatives for accommodating the

right while still satisfying the government's interests.

In its opinion, the Second Circuit noted that its

analysis was controlled by the standard set forth in Safley and

abazz. The court listed all four factors identified in Safley,

and applied them throughout its opinion, including those portions

t that are not subject ¢t the instant petition (which dealt

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able to prove that the alternative procedure of photograph-

the prisoner with his hair pulled tightly back, away from his

, was adequate to satisfy petitioners' professed need. Such

otograph is as useful as one taken after a haircut in reveal-

the personal features that are useful in identifying fugi-

¢ t er I rrectly rgue that the Circuit Court

t é pr f them They rely solely on a state-

that te that petitioners' arguments about

f the alt tive | tographs had been rejected

t w that the covrt shifted the

f t cit ner any more than did this

t t fley "We are aware of no place in

W f testified that such ready

C t f their se rity concerns."

: t emonstrate the existence of

t t rison officials will have to

W t 11t it e { edure is not adequate. If they

f t ebut t pris r's evidence, or do so in an

ing anner, the irt will be justified in holding the

_

eng procedure to be unconstitutional. However, this does

mean that the prisoner does not bear the ultimate burden of

that the regulation is not reasonabiy related to legiti-

mate penological interests.

Petitioners state that the courts below improperly

rejected their criticism of the alternative photographing proce-

dure because it was unrebutted. Apparently, petitioners would

have the courts blindly defer to any expression of security

concerns. This Court's decisions do not go that far.

Although respondents did not call their own security

expert, petitioners' witness was subjec

+ re ions wy + ~s

t to cross-examlination.

Many photographs were used during his testimony as he attempted

to justify petitioners' policy. Respondents also introduced

photographs that were shown to the witness, and which they be-

lieve demonstrated to the courts below that the alternative

procedure suggested by them was equa in utility to that pre-

ferred by petitioners. Tne trial court was able t observe the

witness as he testified, and it could properly find his testimony

unconvincing. Furthermore, the court can rely on its own common

sense in deciding the issues raised, afley at 98 The trier of

fact should be allowed to weigh all of the evidence and reach a

reasoned conclusion as to whether the petitioners have exaggerat-

ed their response to security concerns.

The decision in this case is not an example of a

court's failing to follow the precedents of this Court. The

Courts below were well aware of their duties under the

Safley/Shabazz standards. They carefully applied the law to th

16

facts that were presented at trial. This case does not present

any important legal question worthy of this court's review.

sion below does not conflict with those from other

Petitioners attempt to find a conflict with decisions

from other circuits by pointing to cases where short hair regula-

tions were upheld in the face of free exercise challenges.

However, the cases petitioners rely on all involved markedly

iifferent rules than that challenged here. The rules in those

ses all prohibited prisoners from growing their hair beyond a

ertain length during the term of their incarceration. The state

nterests justifying the adoption of such rules vary considerably

ivanced by petitioners to support their rule.

Petitioners say that a haircut is needed to obtain a

ture of what the prisoner looks like with short hair. Peti-

the w the pris er to grow his hair to any length.

ta é is if the prisoner escapes and cuts off his

t avoid detection, they will need a picture that can be

+ identify him

This is the only state interest put forward by peti-

tioners. The decision below found that petitioners' interest

could be fully protected using the alternative photographing

procedure. This holding does not conflict with the decisions

cited by petitioners because none of them considered the validity

of this particular state interest. Conversely, the state inter-

17

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t . » , wa

‘ ’ ThHa®r -eel. ¢

‘ t at 1€ r s

‘ + + he

¥ . ¢ ffer-

‘ . ac i+ _

CONCLUSION

THE PETITION SHOULD BE DENIED.

Dated: September 28,

1990

20

Respectfully submitted,

ROBERT SELCOV

STEPHEN LATIMER

DAVID C. LEVEN

Prisoners' Legal Services of

New York

2 Catharine Street

Poughkeepsie, New York 12601

(914) 473=+3810

Attorneys for Respondents