Reply Brief — Arpaio v. Doe (No. 07-839)

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“ . | FILED

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3 FEB 24 2008

No. 07-839 | |

SUPREME COURT Ue

IN THE

Supreme Court of the CAnited States

JOSEPH ARPAIO,

MARICOPA COUNTY SHERIFF

IN HIS OFFICIAL CAPACITY,

MARICOPA COUNTY,

Petitioners,

JANE DOE,

INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILARLY SITUATED,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE ARIZONA COURT OF APPEALS

REPLY BRIEF OF PETITIONERS

Daryl Manhart

(Counsel of Record)

Melissa Iyer

Burch & Cracchiolo, P.A.

702 E. Osborn

Suite 200

Phoenix, Arizona 85014

Phone: (602) 274-7611

Attorneys for Petitioners.

Weshington. OC © THIEL PRESS «+ (202) 328-3786

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Page

TABLE OF CONTENTS

We Oe I oc oo i ac esse cn asces seus i

I. Federal Circuits Are Split on the Ques-

Eg ar eee 1

II. Casey and Turner Are Sequentiai, Not

NE I ge bo se er ko a-k o e e aO 3

es oe ekg hg ek ad MEE 6

TABLE OF AUTHORITIES

Cases:

Monmouth County Corr. Institutional Inmates

v. Lanzaro, 834 F.3d 326 (3d Cir. 1987).......... 1

Planned Parenthood v. Casey, 505 U.S. 833

es er rms a sd atm ks 4 AG 3,4

Roe v. Crawford, ___ F.3d ___, 2008 WL

BG TOG (te GAP. FA ee on ok ce ce ee ee 1,2,4

Turner v. Safely, 482 U.S. 78 (1987) ............ 3, 4

Victoria W v. Larpenter, 369 F.3d 475 (5th

Cir. 2004)

REPLY BRIEF OF PETITIONERS

The points addressed in Respondents’ Brief in Oppo-

sition demonstrate why review should be granted.

I.

FEDERAL CIRCUITS ARE SPLIT ON THE QUESTIONS

PRESENTED.

Respondents argue in their Brief in Opposition (at

16-19) that the decisions in Monmouth County Corr.

Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir.

1987), and Victoria W v. Larpenter, 369 F.3d 475

(5th Cir. 2004), do not represent a split between those

circuits. Yet, respondents conclude (at 18) that Mon-

mouth and the courts which followed its reasoning

were correct that no-transport policies violated the

Fourteenth Amendment, while respondents (at 18-19)

characterize Victoria W as “‘premised on faulty reason-

ing” and as “wrongly decided.” If the two cases applied

the same, correct legal standards and departed only on

their facts, then respondents would have no need to dis-

agree with Victoria W’s legal analysis or outcome. Thus,

respondents are tacitly acknowledging that the Third

Circuit and Fifth Circuit are split.

That there is a split is only further buttressed by the

recent opinion in Roe v. Crawford, ___ F.3d , 2008

WL 187513 (8th Cir. 2008). The Eighth Circuit essen-

tially decided to straddle the line dividing Monmouth

and Victoria W by adopting certain portions of each.

Notably, the Eighth Circuit distinguished the policy at

issue in Victoria W from its own policy on the ground

i

2

that the court-order alternative was a valid means of

otherwise exercising the right, which implicitly recog-

nizes that Victoria W was correctly decided. Indeed,

the Eighth Circuit’s opinion even alludes to the fact

that the Policy at issue here (court ordered transport in

lieu of unappealable denial) would have been upheld

had it been before that Eighth Circuit panel. ‘‘Alter-

natively, the MDC could implement a policy similar

to that in Victoric W, requiring inmates to obtain a

court order authorizing the abortion.” Jd. at *6. Addi-

tionally, on the second Turner factor, the Eighth Circuit

expressly agreed with the Fifth Circuit’s Turner anal-

ysis that a court-order alternative gave pregnant pris-

oners wishing to terminate their pregnancies an adequate

vehicle by which to exercise the constitutional right

notwithstanding the policy prohibiting transport. ‘“The

[ Victoria W] policy was rationally related to these

goals, and there were alternatives available, because

the procedure was not onerous, and did not act as a com-

plete bar to elective abortion.” Jd. at *5. Thus, on each

element of Turner, the Eighth Circuit’s opinion sup-

ports the analysis used in Victoria W, not Monmouth.

In fact, the Eighth Circuit expressly disagrees with

Monmouth’s ruling on the Eighth Amendment and

certain critical aspects of its ruling on the Fourteenth

Amendment (e.g., the requirement that the jail actually

fund the abortion). Thus, at a minimum, the Eighth

Circuit’s opinion does exactly what the Petition for

Certiorari here expressed concern about - it muddies

the waters on this issue even more, which is why review

by this Court is so important.

Respondents acknowledge that the reasoning in Roe

presents a problem for their position insofar as it sup-

ports the validity of the court-order alternative provided

3

in the Policy at issue here (at 18, n.17), but nevertheless

discount this analysis as “dicta” to downplay its signifi-

cance. Respondents’ efforts to brush aside Roe’s reas-

oning on these points further demonstrates the inherent

flaw in their argument that no conflict among the fed-

eral courts exists on the issues presented. Were there any

question regarding whether a conflict between Mon-

mouth and Victoria W existed before, Roe dispels the

notion that no conflict is present by highlighting the

points on which those two cases diverge. Moreover,

because the reasoning in Roe correctly observes that a

court-order alternative is a permissible regulation on a

prisoner’s abortion rights, it further supports the ulti-

mate reversal of the Arizona courts’ erroneous decision

to invalidate the Maricopa County Jail Policy, which

does contain the court-order alternative that was missing

in the Missouri Department of Corrections’ policy that

the Eighth Circuit considered in Roe. Respondents’

efforts to dissuade this Court from considering the

impact Roe has on the existing and conflicting state of

the law in the federal courts is unavailing. Review of

this issue is warranted.

II.

CASEY AND TURNER ARE SEQUENTIAL, NOT ALTER-

NATIVE, TESTS.

Respondents’ Brief in Opposition (at 6) states that the

test of Turner v. Safely, 482 U.S. 78, 89 (1987), is more

deferential than that of Planned Parenthood v. Casey,

505 U.S. 833, 873 (1992).! Respondents then conclude

1 Turner recognizes the deference to which prison adminis-

trators are entitled. Respondents’ Brief in Opposition (at 7-8) mis-

construes the Policy to shift to courts the decision as to whether

inmates should be transported. To the contrary, the professional

[footnote continued ]

4

; é ;

that if a prison rule fails Turner, it must necessarily fail

Casey, as well. This is clear error.

The test of Turner v. Safely applies only “when a

prison regulation impinges on inmates’ constitutional

rights.” 482 U.S. at 89. Where is the determination that

the Policy at issue “impinges on inmates’ constitutional

rights”? The Arizona Superior Court (trial court) applied

an ipso facto test that “‘any delay” in obtaining a re-

quested abortion is an “undue burden,” although Planned

Parenthood v. Casey disapproved any ipso facto test.

505 U.S. at 873. The Arizona Court of Appeals abro-

gated any review of whether the Policy impinged on con-

stitutional rights and applied Turner without conducting

a Casey analysis. As Respondents’ Brief in Opposition

(at 5) concedes: “In affirming, the Arizona Court of

judgment of the prison administrators (the County defendants)

is that transport is undesirable for any purpose. Transport for a

medical procedure that is necessary to save the life of an inmate

is as subject to security, safety, and economic concerns as trans-

port for non-medically necessary procedures. Why is no court

order required for those transports? None is required because the

Eighth Amendment intervenes. For non-therapeutic medical pro-

cedures, the Eighth Amendment does not mandate transport.

The prison administrators are free to apply their expertise and

exercise their judgment that transport for such elective procedures

should be avoided, or at least minimized. The Policy accomplishes

that, but yields to the possibility that a court might be persuaded

by an inmate that the specific circumstances of the particular

inmate, or the particular medical procedure the inmate seeks,

warrants an order overriding the Policy and directing that trans-

port be provided in that instance. That is not an abdication

of responsibility to the courts; that is providing the inmate with

a reasonable alternative to the rationally based Policy against pro-

viding transport for non-therapeutic medical procedures. See

Roe v. Crawford.

9)

Appeals first held that the Policy should be tested solely

under Turner, not Casey.”””

The predicate to any Turner analysis is that there is a

prison regulation infringing a constitutional right. In the

case of a regulation impacting the abortion decision, that

invokes a determination whether the regulation imposes

an “undue burden” pursuant to Casey. Hence, they are

sequential tests, not alternatives between which a court

may select at its discretion. Since there has been no

appellate determination that the subject Policy imposes

an “undue burden”’ pursuant to Casey, the predicate to

conducting a Turner analysis did not exist.

*The Arizona Court of Appeals extended the application

of Turner to apply to any challenged policy, even if the under-

lying policy did not infringe a constitutional right. That is an

extension by the state court which is not warranted by Turner

or any other opinion of this Court and further demonstrates why

review is warranted.

6

CONCLUSION

The Petition For A Writ Of Certiorari should be

granted.

Respectfully submitted,

Daryl Manhart

(Counsel of Record)

Melissa lyer

Burch & Cracchiolo, P.A.

702 E. Osborn Road

Suite 200

Phoenix, Arizona 85014

(602) 274-7611

Fax: (602) 234-0341

Attorneys for Petitioners.

February 29, 2008