# Reply Brief — Arpaio v. Doe (No. 07-839) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0429%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2007 ## Text m WY ‘eee “ . | FILED (2 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 () 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0429%3A3. Public record. Not legal advice.