Opposition Brief — Lockhart v. Salaam

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No. 90-701 SOSA F 84g. sp

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In The

Supreme Court of the United States

October Term, 1990

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A. L. LOCKHART, Superintendent,

Arkansas Department of Correction;

LARRY NORRIS, Warden,

Maximum Security Unit, Arkansas

Department of Correction,

Petitioners,

V.

BILAL ALI SALAAM,

a/k/a KEVIN ROBINSON,

Respondent.

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On Writ Of Certiorari From The

United States Court Of Appeals For The

Eighth Circuit

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BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

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RICHARD T. DONOVAN

Rose Law Firm

120 East Fourth Street

Little Rock, Arkansas 72201

Telephone (501) 375-9131

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

TABLE OF AUTHORITIES. .

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

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CONCLUSION ......c0cc00-

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TABLE OF AUTHORITIES

CAsEs:

DeMallory v. Cullen, 855 F.2d 442 (7th Cir. 1988)...... 6

Salaam v. Lockhart, 856 F.2d 1120 (8th Cir. 1988) ....2, 3

Salaam v. Lockhart, 905 F.2d 1168 (8th Cir. 1990) . 3, 4, 5

Thornburg v. Abbott, 109 S.Ct. 1874 (1989)............. 5

Tribble v. Gardner, 860 F.2d 321 (9th Cir. 1988)........ 6

Turner v. Safley, 482 U.S. 78 (1987) ............ 2, 3, 5, 6

Whitney v. Brown, 888 F.2d 1068 (6th Cir. 1989)....... 6

Williams v. Lane, 851 F.2d 867 (7th Cir. 1988)......... 6

Valentine v. Beyer, 850 F.2d 95 (3rd Cir. 1988)......... 5

STATUTE:

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No. 90-701

+

In The

Supreme Court of the United States

October Term, 1990

i.

. 4

A. L. LOCKHART, Superintendent,

Arkansas Department of Correction;

LARRY NORRIS, Warden,

Maximum Security Unit, Arkansas

Department of Correction,

Petitioners,

v.

BILAL ALI SALAAM,

a/k/a KEVIN ROBINSON,

Respondent.

o—

On Writ Of Certiorari From The

United States Court Of Appeals For The

Eighth Circuit

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BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

A.

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STATEMENT OF THE CASE

Respondent is an inmate in the custody of the

Arkansas Department of Correction and was committed

under the name Kevin Robinson. While in prison,

Respondent converted to Islam and legally changed his

name to Bilal Ali Salaam. Respondent's religion required

‘

him to adopt his new name in order to demonstrate his

new state of spiritual enlightenment. Petitioners adopted

and implemented a committed name policy which pro-

vides that only the inmate’s committed name may appear

on the inmate’s uniforms, institutional records and ingo-

ing and outgoing mail. Respondent filed a complaint

against Petitioners under 42 U.S.C. § 1983 in which he

alleged Petitioners’ committed name policy abridged his

free exercise right under the First Amendment.

The District Court upheld the committed name policy

and entered judgment for Petitioners. On appeal, Respon-

dent proposed an “a/k/a” alternative to the committed

name policy. Respondent’s proposed “a/k/a” alternative

would require Petitioners to place Respondent’s Muslim

name in addition to his committed name on prison

clothing and on the “inmate jacket” or main institution

file so that Respondent could obtain services from the

prison such as cashing money orders, commissary privi-

leges, law library privileges and ingoing and outgoing

mail by the use of his Muslim name.

The Court of Appeals remanded the case to the Dis-

trict Court with instructions to review Petitioners’ com-

mitted name policy in light of Respondent's “a/k/a”

alternative and the reasonable relationship standard set

forth in Turner v. Safley, 482 U.S. 78 (1987). Salaam v.

Lockhart, 856 F.2d 1120, 1123 (8th Cir. 1988) (“Salaam I”).

On remand, the District Court held that the commit-

ted name policy did not violate Respondent’s free exer-

cise right and the “a/k/a” alternative would have more

than de minimis effect on the asserted penological inter-

ests.

On appeal, the Court of Appeals reversed the District

Court and held that the committed name policy violated

Respondent’s free exercise right in light of the proposed

“a/k/a” alternative. Salaam v. Lockhart, 905 F.2d 1168 (8th ©

Cir. 1990) (“Salaam II”).

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SUMMARY OF ARGUMENT

The decision below is legally correct and fair to the

parties. It does not create a split in the circuits. The

essence of Petitioners’ challenge is that the court below

erred in its factual findings rather than in the application

of legal standards. The Petition for Writ of Certiorari does

not meet any of the enumerated circumstances in Rule 10

of the Rules of Supreme Court for the granting of Cer-

tiorari. Nor does the Petition set forth any other special

or important reason for the granting of Certiorari in this

case.

ARGUMENT

THE DECISION BELOW IS LEGALLY CORRECT AND

THE RESULT IS FAIR.

In Salaam I the Court of Appeals remanded the mat-

ter for further consideration under Turner and noted that

Respondent’s proposed “a/k/a” alternative might be evi-

dence that the committed name policy was unreasonable

when examined under the fourth Turner criterion. The

fourth Turner criterion provides that “if an inmate can

point to an alternative that fully accommodates the pris-

oner’s rights at de minimis cost to valid penological

interests, a court may consider that as evidence that the

regulation does not satisfy the reasonable relationship

standard.” 482 U.S. at 90-91. In Salaam II the Court of

Appeals applied the four Turner criteria and held the

Petitioners’ committed name policy did not satisfy

Turner's reasonable relationship standard.

Petitioners misstate the nature of the “a/k/a” pro-

posal on page nine of their Petition when they state the

Respondent “was to be addressed and recognized by his

Muslim name but he would ‘compromise’ and allow his

commitment name to remain on his clothing and records

as well as the new name.” In fact, the “a/k/a” proposal

only contemplated the placement of the Muslim name

and the committed name on the prison clothing and on

the “inmate jacket” or main institution file so that

Respondent could obtain services from the prison such as

cashing money orders, commissary privileges, law library

privileges and ingoing and outgoing mail by the use of

his Muslim name. Moreover, Respondent testified that

correction officers would not be required to address him

by his Muslim name and that he would respond to his

committed name.

The Court of Appeals found that the evidence dem-

onstrated the “a/k/a” alternative would have no more

than de minimis effect on the asserted penological inter-

ests of administrative ease, ability to readily identify

inmates and prevention of confrontations. The court

found the burden of adding Respondent’s Muslim name

to certain files and lists was not onerous. 905 F.2d at 1173.

It found Petitioners’ fear of a “ripple effect” in the form

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of numerous insincere name changes designed to mali-

ciously clog the system constituted the “piling of conjec-

ture upon conjecture.” Id. at 1174. Finally, the court found

Petitioners’ fears of confrontations and misidentification

were not supported by the record. Id. at 1175. The stan-

dard applied by the court below was no more strict than

that set forth in Turner. The evidence simply established

no reasonable relationship between the committed name

policy and the asserted penological objectives in light of

the “a/k/a” proposal.

Moreover, the result below is fair to all concerned.

Respondent did not receive the “all or nothing” relief

originally prayed for but agreed to a mutual accommoda-

tion of his First Amendment right and Petitioners’ valid

penological interests.

Il.

THE DECISION BELOW DOES NOT CREATE A SPLIT

IN THE CIRCUITS.

Petitioners misconstrue the decision below when

they characterize the Eighth Circuit’s analysis as a bal-

ancing test. The Eighth Circuit simply applied the Turner

reasonable relationship test. It construed Turner and

Thornburg v. Abbott, 109 S.Ct. 1874 (1989) as requiring it to

“make sure after an independent review of the evidence

that the regulation is not an exaggerated response to

prison concerns.” 905 F.2d at 1171.

Indeed, other circuits have applied the Turner criteria

and reached the conclusion the challenged prison regula-

tion is not reasonably related to the asserted penological

interest. Valentine v. Beyer, 850 F.2d 95 (3rd Cir. 1988);

DeMallory v. Cullen, 855 F.2d 442 (7th Cir. 1988); Whitney

v. Brown, 882 F.2d 1068 (6th Cir. 1989); Williams v. Lane,

851 F.2d 867 (7th Cir. 1988); Tribble v. Gardner, 860 F.2d 321

(9th Cir. 1988).

In short, merely because the circuits reach different

results when the Turner standard is applied to different

fact situations does not mean the circuits are split.

III.

THE ESSENCE OF PETITIONERS’ CHALLENGE IS

THAT THE COURT BELOW ERRED IN ITS FACTUAL

FINDINGS RATHER THAN IN THE APPLICATION OF

LEGAL STANDARDS.

A fair reading of the opinion below leads to the

conclusion the Court of Appeals applied the Turner rea-

sonable relationship test to the evidence in the record. It

cannot be denied that the Court of Appeals was required

to determine the effect of Respondent's “a/k/a” alterna-

tive on the penological interests the committed name

policy purportedly serves.

Thus, Petitioners do not ask this Court to settle an

important, unsettled question of federal law but to

resolve factual issues. Those issues include:

1) how much paperwork would the “a/k/a”

alternative involve;

2) would Muslim inmates use the “a/k/a”

alternative as a pretext to clog the system or

cause confrontations; and

3) would the “a/k/a” alternative create confu-

sion regarding an inmate’s identity.

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Respondent respectfully submits that a review of this

case would require the resolution of numerous factual

issues and, accordingly, does not warrant the exercise of

this Court’s discretionary Certiorari jurisdiction.

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CONCLUSION

The decision below was correct on the law and

reached an equitable result. No special or important rea-

son exists for granting the Petition because there is no

conflict between the circuits or unsettled question of fed-

eral law.

Respectfully submitted,

RicHARD T. DONOVAN

Rose LAw Firm

120 East Fourth Street

Little Rock, Arkansas 72201

Telephone (501) 375-9131

Attorney for Respondent