Amicus Curiae Brief — Gerber v. Hickman, Warden

(d)

MOTION FILED (9)

NO. 02-419

OCT 4 7 2002

“

IN THE

SUPREME COURT OF THE UNITED STATES

WILLIAM GERBER,

PETITIONER,

V.

RODERICK HICKMAN,

RESPONDENT.

On Petition of Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

MOTION OF THE

PECHANGA BAND OF LUISENO MISSION INDIANS

FOR LEAVE TO FILE

BRIEF OF AMICUS CURIAE AND

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Richard T. Williams

Counsel of Record

James K. Kawahara Leo G. Rydzewski

Alex R. Baghdassarian HOLLAND & KNIGHT LLP

Alan J. Watson 2099 Pennsylvania Avenue, NW

HOLLAND & KNIGHT LLP Washington, D.C. 20006

633 West Fifth Street, 21° Fl. Telephone: (202) 955-3000

Los Angeles, CA 90071

Telephone: (213) 896-2400

Counsel For

The Pechanga Band of Luiseno Mission Indians

MOTION OF THE

PECHANGA BAND OF LUISENO MISSION INDIANS

FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE

Relief Sought

Pursuant to Rule 37.2(b) of the Rules of this Court,

Amicus curiae, the Pechanga Band of Luiseno Mission

Indians, move for leave to file the attached Brief of Amicus

Curiae in Support of the Petitioner.

Name Of Party Withholding Consent To Filing

Amicus Brief

Petitioner William Gerber has consented to the filing

of the brief. This motion is necessary because Respondent

Roderick Hickman (hereinafter referred to as "the warden")

has denied consent.

Nature Of Movant's Interest

The Ninth Circuit's determination that an inmate's

right to procreate with his wife is fundamentally inconsistent

with incarceration conflicts with the Court's precedent

governing inmate rights. It is also contrary to the rights

afforded inmates under California's Constitution.

The proposed means of procreation, artificial

insemination via delivery of the inmate's semen sample

outside the prison walls, also impacts the rights of a non-

prisoner spouse because it involves outgoing mail. A

heightened scrutiny review under the Court's holding in

Procunier v. Martinez, 416 U.S. 396 (1974), Turner v.

Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490

U.S. 401 (1989) makes it clear that the warden's decision

cannot be sustained. At the very least, a factual inquiry had

to be conducted under Turner v. Safley, 482 U.S. 78 (1987)

to determine if the warden's decision was reasonably related

to legitimate penological interests.

Petitioner's wife is a member of a federally-

recognized Indian Tribe, amicus herein. By upholding the

warden's decision to de facto sterilize petitioner for life, the

Ninth Circuit has condoned a decision by the state to

interfere with the propagation of certain groups and races — a

danger the Court recognized and struck down in Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942).

The Tribe respectfully requests the Court's

permission to submit the accompanying amicus brief to

address this important Constitutional issue.

Dated: October 17,2002 Respectfully submitted,

Richard T. Williams

Counsel of Record

James K. Kawahara

Alex R. Baghdassarian

Alan J. Watson

HOLLAND & KNIGHT LLP

633 West Fifth Street, 21° FI.

Los Angeles, CA 90071

Telephone: (213) 896-2400

Leo G. Rydzewski

HOLLAND & KNIGHT LLP

2099 Pennsylvania Avenue, NW

Washington, D.C. 20006

Telephone: (202) 955-3000

Counsel For The Pechanga

Band of Luiseno Mission Indians

2

QUESTION PRESENTED

The Ninth Circuit upheld respondent's motion to

dismiss petitioner's claim to be allowed to procreate with his

wife by means of artificial insemination, without any

attempted showing that the bar is related to penological

interests. In effect, the court of appeals has determined that

an inmate has no Constitutional protections, even if a prison

regulation is not "reasonably related to legitimate

penological interests." Turner v. Safley, 482 U.S. 78, 84

(1987). This case is particularly troublesome because the

Ninth Circuit's decision derails the Constitutional right to

have children of thousands of married male inmates confined

in California's state penal system. At the same time, it

strikes down, without any rationale reason, the rights of

thousands of wives to have children with their husbands.

Support of one's family is conducive to stability in an

inmate population and directly benefits penological interests:

"The value of visiting as a means to establish and maintain

meaningful family and community relationships is

recognized and encouraged." Cal. Code Regs. title 15,

§ 3170(a) (2002). A prisoner who maintains family ties is

one who is less likely to be problematic for the correctional

facility. Yet, in this instance, the prison warden, for no

reason related to a legitimate penological interest, has denied

a husband and wife the right ever to have children together,

by any means of conception.

The question presented is: Does a married inmate's

right to have children with his wife survive incarceration

when there is no showing of any contrary penological

interest?

TABLE OF CONTENTS

CFA 5 ISS FRR O REED cihtcctnericicsavctinscenssaeesniensiabenenneenee i

SABES GP ARS TUE NM vieivnnscsenscnnasniisantannniniatitinionbninss iV

BRIEF OF AMICUS CURIAE IN SUPPORT

Fe IR sain dekwnsicisbc easiness aisiiniiceantiibinininvluaianile ]

INTEREST OF THE AMICUS CURIAE ..........sc0ssseseeeeeseees ]

SUDEDEAL ES Ol ARSENE sersesreccssecesenscsnecaniossenacsonesness 2

PI FATOIIIINE sccsasnicsinsneisseenicineenassbeeennianiiuneinibubanihiasensnns 3

z The Ninth Circuit's Determination That Mr.

Gerber's Right To Procreate Does Not

Survive Incarceration Conflicts With The

Standards Established By This Court And

With The Holdings Of Other United States

COMERS: GE ROOD. wis sireiticnsinceinitnsantseniniinenaimnanwenes 3

A. Respondent's Denial Of Petitioner's

Constitutional Right To Procreate Is

An Impermissible Exercise Of Racial

And Genetic Control By The State Of

CCID cevecredgusiinnniviinnieiatninitiningininednmiaminnns 3

B. Heightened Scrutiny Is Required

When Dealing With Inmates’

Outgoing Mail Because It Affects The

Constitutional Rights Of Third Parties. ...... 5

il

C. An Inmate's Spouse's Constitutional

Right To Procreate Should Be One Of

The Factors Considered In A Turner

PN isis donsiensistsitennaiiliencniiailasinieialatiinhiaaisiies 11

D. An Inmate's Right To Procreate By

Means Of Artificial Insemination Is

Not Inconsistent With His Status As A

Il. Fundamental Notions Of Due Process

Confirm That, In California, Incarceration

Does Not Terminate The Constitutional Right

POR, cise ccitsainaintniaag hte ot 17

RIE PEN i stasccsiinchinsiccchnstichinpublideneannasiunicmia mind 20

ill

TABLE OF AUTHORITIES

CASES

In re Arias,

42 Cal. 3d 667, 725 P.2d 664,

230 Cal. Rytr. 505 (1966)......crccorccosesscvescosssoossensveesosees 18, 19

Calif. Highway Committee

v. Industrial Acc. Comm.,

200 Cal, 44, 251 BP. GR CUBR) scceccesceescscscrcinseesinsassonen 17-18

Conservatorship of Valerie N.,

40 Cal. 3d 143, 707 P.2d 760,

219 Cal. Retr. S87 (19S) .ccccccsecccosersessoresesscevssessesenses 18, 19

DeLancie v. Superior Court,

31 Cal. 3d 865, 647 P.2d 142,

183 Cal. Rptr. 866 (1982),

overturned on other grounds,

People v. Loyd,

27 Cal. 4th 997, 45 P.3d 296,

119 Cal. Rotr. 2d 360 (2002)...c...c.ccecccccsesccessescessosoee 18, 19

Frisby v. Schultz,

487 U.S. 474 (1988) .............seseee ssssesnsecnsensnnecsnsecsanecsaneceses 17

Gerber \. Hickman,

291 F368 GIT COs Cae, FIGZ) crecccsccoscocessccenesstscsnoreceseen passim

Goodwin v. Turner,

i SOB F.26 13SDS CO CU. UGG) cevcrcccrosscccsscecociessencesissees 11,12

Griswold v. Connecticut,

SEL UB. S70 CIF) vcneceserssecscersersiessssageirennsemernnntiahanions 17

iv

Lambert v. Wiklund,

es ee HED vinccidisienacenbcdalecibascaguintanienkenivediciinitios 13-14

Monmouth County Correctional

Institution Inmates v. Lanzarro,

ae ee es FI cecinssscteitencktocnsninensnscuaniennsniinntinn 11

Pell v. Procunier, 417 U.S. 817 (1974)...........sscccssssssseeeees 14

Procunier v. Martinez,

OG Eis te TE hiattericentitntinccniintenstensinbinnetiteianmeds passim

Skinner v. Oklahoma,

a CT chcintinniauenicenisiinbitaiihiniiatihettiindiininane 4, 5,20

Thompson v. Department of Corrections,

25 Cal. 4th 117, 18 P. 3d 1198,

ROS Gab, Fine: BG SG GOOG) catecesctceensesencensesecinneeninsneineniness 19

Thornburgh v. Abbott,

A i Fe Se cer steiitianstctensttetsticlinctnnaiiiiivanniaisnal passim

Turner v. Safley,

SS neta cicestcennstsintnniccenehiisiniiatinnciitintlann passim

TA R AD TRATIVE COD

FEDERAL

65 Fed. Reg. 13298 (March 12, 2000) ..........s.sssssesseeseeeeees 1

es i Wee. hae eects sctesastbinitincetnenscenniittnriceeiial 16

Sup. Cz. BR. 10 ...ccececcecscceccsressserecccosovesocssocsovsnsessonsoccnsensosooess 2

Supp. Ct. BR. 1000) .....crecceccescrorecseorvccsensencoessosnescessoosocasonesases 11

Sup. Cv, BR. 1O(C) .neccccccccccerccccrcccecnsoscessccscensessecsensososoones 14, 17

ZS U.S.C. OG 1901 -1D14 .......0.cercesrecccecrsrcesevonscccensscoscesenee 1-2

BEAT BAL. & BOGE crcceccrrsceeceseccecsscesnsacopstoonsnstoosnsesonsosoosessoses 17

PR EN rc RIMMER OVE ween te 9

pF 8 a ee Sn 9

Cal. Penal Code § 295 ef seg. ............00++. peilalpiatbaipchlibasnaitelinds 10

eRe TIT ics cnnnansiitinbiahciaeatincnetieseomaiaidiamees 9,10

Ce, IE Se SD vcciscnccecasentecscseintnnnsnessintiiiitiing 9-10

Os i teins 18-19

Cal. Code Regs. title 15, § 3170(a) ..........ceccceseeeeeeeees i, 4-5

FS _—_—_- Eee OR TI 9

ies NN, SEs a PI a ckinnasssccssnsiscibimiensbncsaticiieitsscbinnitian 9

SG ts GI CII ci nicsccrsntetanipnanisnsbiibbenbaanidadaaiasicichiatll 9

RE SITE ssaicnenindiisanseisenindcisnanenstenandbhacdnaadbnmoanabiih 9

Se UNE TTI Wid nhc cstasicitsiecelenatictaneinnsscanicniendiiasbabiabenatibies 9

Fe as I, TR Se PO calsenschcanignsndbisineshinibibiechnenninaisiichics 4

EE PR a Pe EE Ne 9

Ee. Come Cite. Pree. Ame. 20. SOG. 2 o..ccccecccsccsccscssscessccessees 9

Ed. Code Anmm., Crim. Proc. 8-201 ...........cccvcccccsessescssccscesee 9

Se ea Tn GI Ss eth, RANT sconnscoccsccestisibineniiednstismmantaisie 9

EE Ny CD PICO seteistitnzsnivennssicerntinsidtenshnllbniuinintinitien 9

A as eeslisideeniannnibi 9

A nts CI i ciinticeshsscnsecseninicnlndestihateehchln denied 9

ess i Ses IPCI ctnctsirsssihctcsietenisienhdtbndasdiddtinbeeeitibieidientah 9

ic i IN nis csicericsiemelsenteiioniianeliahiennbiniiitinn 9

Pe es ANNE NID verhsttbsdnlincrtnscinnicensdicsionebiaaitnieieeedinnimabantede 9

ke Se Nc BI IE cesintcnsicetcncithintinctecsindibintieminnmpiniiniaad 9

EL Ree SC i)

OR RE: ) Rh Ie eeenEnn Serer i)

RE DR: EER ot Se er a OI 9

CRE re lg Fe aicecientcssnnsisensmnctcienntenandnlenitunlcinnenniian 9

Rs ae Fe Ie crccticersnsetecintinttnsintsnetictininaitiaatatiaatis 9

Tex. Code Ann. Crim. Proc. art. 64.03 ...........cccccccceesseeeeeeees 9

Utah Code Ann. 78-35a-301 .............ccccceeeeees A 9

We Ce CU, SGT wl cttcconccicemnndibincinictebeniannsiabinemaiebe 9

Sn eee ee 9

Wisc. Stat. 974.07.........sssssssessssesssnssssssensssnesnsesnsesssesssensesncens 9

LEGAL TREATISES

R. Stern, E. Gressman, S. Shapiro & K. Geller,

Supreme Court Practice (8" ed. 2002) ......c..s..se.ses00++. passim

N- P :

MATERIALS

California Department of Corrections Monthly

Report of Population as of Midnight

August 31, 2002. www.cdc.state.ca.us/reports/

Archive_PDF/Monthly/TotalPop/Aug2002.pdf................. 5-6

_C.J. Mumola, Jncarcerated Parents and

Their Children, Special Report of the Bureau of

Justice Statistics, U.S. Dept. of Justice

(August 2000) www.ojp.usdoj.gov/Djs/. ..........cccceeeeeeees > is

P. M. Harrison and A. J. Beck, Prisoners ~

in 2001, Bulletin of the Bureau of Justice

Statistics, U.S. Dept. of Justice (July 2002) ~

I tidintnsdasisasntetsanesneesssessnnesinereconennsc 13

Second and Third Strikers in the Institution

Population, California Department of -

Corrections, (July 2002),

www.cdc.state.ca.us/pdf/strike0602.pdf...........cceeseeeseeeseees 5

OTHER MATERIALS

15 Cal. Att. Gen. Ops. 38 (1950)......ssssssssccssssseeseseessneeee 17-18

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

Amicus curiae, the Pechanga Band of Luiseno

Mission Indians (the "Tribe"), is a federally-recognized

Indian tribe, see 65 Fed. Reg. 13298 at-13300 (March 12,

2000).' Evelyn Gerber, the spouse of petitioner William

Gerber, is a member of the Tribe. Under the laws of the

Tribe, Mr. and Mrs. Gerber's child would be eligible for

tribal membership. The Tribe has a substantial interest in

protecting the right of its member, Mrs. Gerber, to procreate

and bring a child into this world.

Mrs. Gerber is a member of the Tribe's Cultural

Committee, and she is the tribally-designated caretaker of the

Ringing Rock Sacred Site located near the Tribe's

reservation in Temecula, California. Mr. and Mrs. Gerber

intend on raising their future children in the traditional

Luiseno culture and language.

The Tribe has a federally-recognized interest in

protecting the interests of its members, including children

that are eligible for tribal membership. The Indian Child

Welfare Act, 25 U.S.C. §§ 1901 - 1914, recognizes that

"there is no resource more vital to the continued existence

and integrity of Indian tribes than their children and that the

United States has a direct interest, as a trustee, in protecting

' Counsel for the amicus curiae authored this brief in its entirety. No

person or entity other than the amicus curiae or their counsel made a

monetary contribution to the preparation or submission of this brief.

The letter from the petitioner consenting to the filing of this brief has

been lodged with the Clerk of the Court. Respondent has denied

consent.

Indian children who are members of or are eligible for

membership in an Indian tribe." 25 U.S.C. § 1901(3). The

Tribe, therefore, has an interest in challenging the warden's

arbitrary denial of Mr. and Mrs. Gerber's request for artificial

insemination.

SUMMARY OF ARGUMENT

The Ninth Circuit's decision in Gerber v. Hickman,

291 F.3d 617 (9" Cir. 2002) directly conflicts with

applicable decisions of this Court with respect to an

important issue — the fundamental right of a married inmate

to have a child with his wife. The deprivation of this right is

all the more troubling because the Ninth Circuit upheld the

granting of the warden's motion to dismiss by ignoring the

Court's standards governing prisoner rights set forth in

Turner v. Safley, 482 U.S. 78 (1987) and Procunier v.

Martinez, 416 U.S. 396 (1974).

This matter is of importance under Rule 10 of the

Court because it implicates the Constitutional nights of more

than 1,400 married male prisoners sentenced under

California's 3-strikes law who are incarcerated in the state of

California penal system, it has an impact beyond the prison

walls as it affects the Constitutional rights of spouses of

married prisoners, and it conflicts with, and impacts the

development of, the law with regard to prisoner rights under

the Court's applicable precedent.

Where the issue is whether an inmate can mail a

DNA sample (blood, semen or otherwise) outside the prison

walls, a heightened scrutiny review of a prison

administrator's decision to interfere with that process is

called for. At the very least, a fact inquiry into whether the

inmate's request has an impact on penological interests must

be conducted before the inmate is deprived of the

Constitutional Right to ever have children, because of the

nature of the sentence which the inmate is serving.

The state should not be permitted to deprive any

individual of the fundamental right to have children where

there is no showing that an inmate's right to procreate via

artificial insemination has any impact on penological

interests.

ARGUMENT

I. The Ninth Circuit's Determination That Mr.

Gerber's Right To Procreate Does Not Survive

Incarceration Conflicts With The Standards

Established By This Court And With The

Holdings Of Other United States Courts Of

Appeals

A. Respondent's Denial Of Petitioner's

Constitutional Right To Procreate Is An

Impermissible Exercise Of Racial And Genetic

Control By The State Of California

Certiorari is appropriate pursuant to Supreme Court

Rule 10(c) because the Ninth Circuit's decision in Gerber v.

Hickman, 291 F.3d 617 (9th Cir. 2002) directly conflicts

with applicable decisions of this Court with respect to an

important issue — the fundamental right of a married inmate

to one day have a child with his wife.”

2 See also R. Stern, E. Gressman, S. Shapiro & K. Geller, Supreme Court

Practice, § 4.5 at 232-233 (8" ed. 2002) (hereinafter "Stern &

Gressman") ("A direct conflict between the decision of the court of

appeals of which review is being sought and a decision of the Supreme

Court is one of the strongest possible grounds for securing the issuance

of a writ of certiorari.")

In striking down a state statute mandating forced

sterilization for certain habitual criminals, the Court in

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) determined

that the right to procreate is "one of the basic civil nights of

man" and that "marriage and procreation are fundamental to

the very existence and survival of the race." The Court

warned that in "evil or reckless hands" a state's decision to

prevent its inmates from having children can have a

devastating impact, causing "races or types which are

inimical to the dominant group to wither and disappear."

Id. The "reckless hands" the Court foreshadowed in Skinner

is reality in 21 Century California. The warden's decision

to deny petitioner's request to artificially inseminate his wife

has a direct impact on the propagation of the Tribe — a

Native American race that lived in California long before the

"state" came into existence — because it forecloses any

possibility that Mrs. Gerber, who is in her mid-forties, can

have children with her husband, who is serving a one

hundred years to life plus eleven years prison sentence. As

Judge Kozinski stated in his dissenting opinion in Gerber v.

Hickman, 291 F.3d 617 (9th Cir. 2002):

By cutting off Gerber's fundamental right to

procreate, prison authorities have enhanced Gerber's

punishment beyond that authorized by statute, and

consigned Mrs. Gerber to a childless marriage. Id. at

632.

At a time when modern medicine, by means of

artificial insemination, allows Mrs. Gerber to bear children

without any impact on prison security, a prison warden has

decided to exercise racial and genetic control and has

relegated Mrs. Gerber to a life sentence — one without the

possibility of having children with her husband. The

warden's decision is also incomprehensible because stable

family ties, and visitation by inmates' family members, are

4

recognized to be in the penal interest: "The value of visiting

as a means to establish and maintain meaningful family and

community relationships is recognized and encouraged." Cal.

Code Regs. title 15, § 3170(a) (2002).

The warden's decision has "forever deprived [Mrs.

Gerber] of a basic liberty" — the right to have children with

her husband. Skinner, 316 U.S. at 541. The deprivation of

this right is all the more troubling because the Ninth Circuit

completely ignored the Court's standards governing prisoner

rights in Turner v. Safley, 482 U.S. 78 (1987) and upheld a

prison administrator's capricious decision that has no bearing

on any penological interest.

B. Heightened Scrutiny Is Required When

Dealing With/Inmates' Outgoing Mail Because It

Affects The Constitutional Rights Of Third Parties.

This matter is of importance under Rule 10 because

the decision to deny inmates' fundamental right to procreate

implicates the Constitutional rights of more than 1,400

married male prisoners sentenced under California's 3-strikes

law who are incarcerated in the state of California penal

systems,” has an impact beyond the prison walls and on the

3 There are 7,291 male 3-strikes inmates serving 25 year to life sentences

in California. See Second and Third Strikers in the Institution

Population, June 30, 2002, California Department of Corrections, p. 2

(July 2002), available online at www.cdc.state.ca.us/pdf/strike0602.pdf.

And, according to 1997 data from the Bureau of Justice Statistics,

twenty-three percent (23%) of inmates in state prisons are married. See

C.J. Mumola, Incarcerated Parents and Their Children, Special Report

of the Bureau of Justice Statistics, U.S. Dept. of Justice, Table 3 at 3

(August 2000), available online at www.ojp.usdoj.gov/bjs/ (hereinafter

referred to as "Incarcerated Parents").

The total male inmate population in California's state prison system is

150,321 as of August, 2002. See California Department of Corrections

Monthly Report of Population as of Midnight August 31, 2002. Report

5

Constitutional rights of spouses of married prisoners, and

conflicts with, and impacts the development of, the law with

regard to prisoner rights under the Court's earlier decisions in

Procunier v. Martinez, 416 U.S. 396 (1974), Turner v.

Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490

U.S. 401 (1989).* Where the issue is whether an inmate can

mail a DNA sample (blood, semen or otherwise) outside the

prison walls, a heightened scrutiny review of a prison

administrator's decision to interfere with that process is

called for.

As this Court indicated, prison regulations may not

unnecessarily infringe upon the Constitutional rights of non-

prisoners. Procunier v. Martinez, 416 U.S. 396 (1974),

partially overruled on other grounds by, Thornburgh v.

Abbott, 490 U.S. 401 (1989). In Martinez, the Court

explained that its review of prison restrictions on inmate

correspondence involved more than merely examining an

inmate's right to free speech, but rather those of free citizens

as well:

[C]ensorship of prisoner mail works a consequential

restriction on the First and Fourteenth Amendment

rights of those who are not prisoners. Id. at 409.

The Court's decision in Martinez "turned on the fact —

that the challenged regulation caused a consequential

restriction on [Constitutional] rights of those who are not

prisoners." Turner v. Safley, 482 U.S. 78, 86 (1987).

Because the Court did not view the Martinez case strictly as

a prisoner's rights case, the Court employed the heightened

available online at www.cdc.state.ca. a sendin ions PDF/Monthly/

TotalPop/Aug2002.pdf.

* See also Stern & Gressman, § 4.11 at 243-244.

scrutiny test used in other instances to address "the general

problem of incidental restrictions on First Amendment

liberties." Procunier v. Martinez, 416 U.S. at 409.

In Turner v. Safley, 482 U.S. 78 (1987), the Court

acknowledged that while Martinez addressed the rights of

non-prisoners, the questions before it involved prisoner's

rights — restrictions on inmate marriages and inmate-to-

inmate correspondence. Id. at 85. Specifically, Turner

acknowledged that Martinez could be applied to assess

whether a prison regulation violates the fundamental right to

marry of individuals who are not prisoners:

[W]e note initially that the regulation prohibits

marriages between inmates and civilians, as well as

marriages between inmates. Although not urged by

respondents, this implication of the interests of

nonprisoners may support the application of the

Martinez standard, because the regulation may entail

a consequential restriction on the constitutional

rights of those who are not prisoners. Id. at 97

(emphasis added).

With regard to a prisoner's right, the Court in Turner

formulated a new standard of review that involved an inquiry

into whether a prison regulation is reasonably related to ~

legitimate penological interests. Jd. at 89. It established a

four-part test to determine the reasonableness of such

regulations: (1) Whether there is a valid, logical connection

between the regulation and the penological interest; (2)

whether there are alternative means of exercising the

asserted Constitutional right that remains open to inmates,

(3) whether and the extent to which accommodation of the

asserted right impacts prison staff, other inmates, and prison

resources; and (4) the absence of any ready alternatives. Id.

Following an analysis of these factors, the Turner

Court upheld the prison regulation governing

correspondence between inmates, but struck down the

regulation restricting inmate marriages. Although the

standards announced by the Court in Turner seem

straightforward, questions persist with respect to the

application of those standards to situations where a prison

régulation impacts not just the rights of inmates, but also, as

here, curtails the Constitutional rights of non-prisoners.

Applying the Turner reasonableness standard, the

Court in Thornburgh v. Abbott, 490 U.S. 401 (1989)

determined that prison regulations which prevented inmates

from receiving specific publications were valid because they

protected prison security, were neutral with regard to the

content of the expression regulated, were rationally related to

security interests and alternative means of expression

remained open to the inmates. The Court indicated that it

was simply not "sufficient to focus" on whether the rights

that were affected were those of prisoners or non-prisoners,

id. at 410 n.9, and concluded that that the heightened

scrutiny test announced in Martinez applied only to outgoing

correspondence from prisoners, id. at 413. Although the

Court specifically overruled that portion of the Martinez

holding that distinguished between incoming correspondence

from prisoners versus from nonprisoners, id. at 414, the

Thornburgh decision did not abandon the need to consider

nonprisoner nights. 3

In this case, respondent determined that petitioner

should not be allowed to mail a DNA semen sample outside

prison walls for purposes of artificially inseminating his

wife. This decision was summarily made by the warden. It

was upheld by the Ninth Circuit without any showing by the

warden that the decision bore any logical relationship to

penological interests, as the Court required in Turner. The

Ninth Circuit's holding is also contrary to the requirement

pronounced in Martinez, and still valid under Thornburgh,

that limitations on an inmate's outgoing mail be subjected to

heightened scrutiny.

Had the Ninth Circuit undertaken an analysis under

either Turner or Martinez, it would have been obvious that

the warden's decision could not be sustained:

e First, California, along with more than two dozen

other jurisdictions, has enacted legislation that ~

permits inmates, post-conviction, access to DNA

testing for purposes of challenging their

conviction. See Cal. Penal Code § 1405 (2002);°

e Second, unlike some jurisdictions, California's

post-conviction DNA testing statute does not

mandate the use of state labs for the DNA testing.

5 See also Ariz. Rev. Stat. 13-4240 (2002); Ark. Code Ann. 16-112-124

to -129 (Michie 2001); Del. Code Ann. tit. 11, 4504 (2001); D.C. Code

Ann. 4031-4035 (2001 & Supp. 2002); Fla. Stat. ch. 925.11(1)(a) (2001);

Idaho Code 19-2719 (Michie 2002)(procedures for capital cases only);

Idaho Code 19-4902 (Michie 2002); 725 Ill. Comp. Stat. 5/116-3 (2002);

Ind. Code 35-38-7-1 to -19 (2001); La. Code Crim. Proc. Ann. art. 926.1

(2002); Me. Rev. Stat. Ann. tit. 15,2137 (West 2001); Md. Code Ann.,

Crim. Proc. 8-201 (2001); Mich. Comp. Laws 770.16 (2002); Minn. Stat.

590.01 (2002); Mo. Rev. Stat. 547.035 (2002); Neb. Rev. Stat. 29-4117

to -4125 (2001); N.J. Stat. Ann. 2A:84A-32a (West 2002); N.M. Stat. -

Ann. 31-1A-1 (Michie 2001); N.Y. Crim. Proc. Law 440.30 (Consol.

: 2001); N.C. Gen. Stat. 15A-269 (2002); Okla. Stat. tit. 22, 1371, 1371.1

[ (2002); Okla. Stat. tit. 22, 1372 (2001); S.B. 667, 2001 Leg., 71st Sess.

(Or. 2001); Tenn. Code Ann. 40-30-401 to -413 (2002); Tex. Code Ann.

Crim. Proc. art. 64.03 (2002); Utah Code Ann. 78-35a-301 to -304

(2001); Va. Code Ann. 19.2-327.1 (2001); Wash. Rev. Code 10.73.170

(2002); Wisc. Stat. 974.07 (2002).

California's statutory scheme contemplates the

parties (i.e., the state and the prisoner) will use a

private lab for such testing. See Cal. Penal Code §

1405(g); and

e Third, California has a statutory scheme by which

its prison system collects materials that contain

DNA samples from inmates, including blood

samples, io allow for expeditious detection and

prosecution of criminals, as well as to exclude

suspects under investigation. See DNA and

Forensic Identification Data Base and Data Bank

Act of 1998, Cal. Penal Code § 295 et seq.

(2002).

California's legislature has determined that convicted

inmates can undergo DNA testing — both for purposes of

obtaining exculpatory evidence to fight a conviction, and in

order to provide forensic identification data for criminal

investigations. The state prison wardens have no say in

permitting or denying such testing because, obviously, under

a Turner analysis, the DNA testing has no bearing on

penological interests. As with DNA testing permitted under

Cal. Penal Code § 1405, the DNA sample in this instance

would be mailed out of the prison. Under Martinez and

Thornburgh, the warden's denial of petitioner's outgoing mail

cannot withstand heightened scrutiny review: Ifa

California prison is able to mail or ship DNA samples to a

private lab in connection with a Penal Code § 1405 Motion

for DNA Testing, it can likewise mail a DNA sample to a lab

for artificial insemination — the use of the DNA sample

outside the prison walls is certainly of no concern to the

warden and does not impact prison security.

10

= An Inmate's Spouse's Constitutional Right To

Procreate Should Be One Of The Factors Considered

In A Turner Analysis

Certiorari should be granted pursuant to Rule 10(a)

because the Ninth Circuit's decision in Gerber v. Hickman,

291 F.3d 617 (9th Cir. 2002), as to whether a person's night

to procreate survives incarceration, is in conflict with the

decision of the Third Circuit in Monmouth County

Correctional Institution Inmates v. Lanzarro, 834 F.2d 326

(3d Cir. 1987). Moreover, the Eighth Circuit's holding in

Goodwin v. Turner, 908 F.2d 1395 (8th Cir. 1990) assumed,

without deciding, that procreation survives incarceration.

Amicus will not discuss in detail the conflict between

the Ninth Circuit decision and the holding of the Third

Circuit in Monmouth County. That issue has been addressed

- in petitioner's brief. However, Amicus will address how the

Court could resolve this conflict, while providing guidance

on the issue of prison regulations that impact the rights of

non-prisoners, based on the Court's own precedent.

Following the Court's decision in Thornburgh, lower

courts have dismissed, as irrelevant, the rights of

nonprisoners impacted by prison regulations.° And, the

Ninth Circuit majority, in the present case, did not even

address nonprisoner rights in its decision to deny petitioner

the right to procreate.

In his dissenting opinion in Gerber, Judge Kozinski

acknowledged that the rights of non-inmate third parties

6 In Goodwin v. Turner, 908 F.2d 1395, 1399 (8th Cir. 1990), the Eighth

Circuit denied an inmate's request to artificially inseminate his wife.

The court determined that prison regulations cannot be subjected to strict

scrutiny when a family member is affected by a prison regulation.

il

must to be taken into account in determining the

constitutionality of a prison regulation that infringes on a

nonprisoner's right to procreate:

...[P]rocreation (at least within the marital

relationship) is a fundamental right. Such a right

may be abrogated only pursuant to lawful authority

and for compelling reasons. The reasons here must

be particularly strong because the burden of this

prohibition falls not only on Gerber, but also Mrs.

Gerber, who is precluded from bearing a child

fathered by her husband. As the Supreme Court

noted in Turner, when a prison regulation creates a

"consequential restriction on the [constitutional]

rights of those who are not prisoners," it will be

subjected to more searching scrutiny than when the

burden falls only on inmates. Gerber v. Hickman,

291 F.3d at 631 (citations omitted) (emphasis added).

Judge McMillian noted in his dissent in Goodwin that

the rights of an inmate's spouse should be considered in

applying the Turner reasonableness test. Specifically, he

recommended that the alternative means available to a non-

prisoner for exercising a right also be considered:

Although the second Turner factor focuses on the

nature of the deprivation of the inmate's right, I

believe it is also appropriate to consider the

deprivation of the rights of noninmates...Mrs.

Goodwin's fundamental right to procreate within a

marriage relationship is completely foreclosed by the

Bureau's policy, at least until Goodwin's release from

prison. Goodwin v. Turner, 908 F.2d at 1406 n.6.’

” Unlike Goodwin, Mr. Gerber is never going to be released from prison

as a result of his one hundred years to life plus eleven years prison

sentence.

12

To provide further guidance to the lower courts and

to resolve the conflict among the courts of appeals, in those

instances when a prison regulation impacts the Constitutional

rights of non-inmates, the Court is respectfully requested, to

affirm that a consideration of the regulation's impact on the

Constitutional rights of such third parties is appropriate.

D. An 's Right ate By Means Of

Artifici ination Inconsistent Wi is

Status As A Prisoner

The Ninth Circuit's erroneous decision has far greater

implications than on just the parties to this case. Whether

an inmate's right to procreate is consistent with his status as a

prisoner is a decision that, potentially, will impact more than

52,000 married prisoners confined in the penal systems of

the states that are subject to the jurisdiction of the Ninth

Circuit Court of Appeals.* This is not an isolated issue that

solely impacts Mr. Gerber's Constitutional rights; the Ninth

Circuit decision has a direct ramification on the

Constitutional rights of the thousands of married inmates,

and their spouses, living in California.” Because the Ninth

Circuit's rationale in support of its decision is in direct

conflict with the Court's precedent in Turner v. Safley, 482

® More than 243,000 inmates are confined in prisons within the Ninth

Circuit. See P. M. Harrison and A. J. Beck, Prisoners in 2001, Bulletin

of the Bureau of Justice Statistics, U.S. Dept. of Justice, Table 3 at 3

(July 2002), available online at www.ojp.usdoj.gov/bjs/ (hereinafter

referred to as "Prisoners in 2001"). The prisoner statistics for the Ninth

Circuit do not include figures for the Territory of Guam or the

Commonwealth of the Northern Mariana Islands. Since 23% of inmates

are married, approximately 52,000 inmates housed in prisons within the

Ninth Circuit should be married. See Incarcerated Parents, fn. 3, supra.

* See Incarcerated Parents (twenty-three percent (23%) of the inmates in

state prison systems are married), fn. 3, supra.

13

U.S. 78 (1987), redress by grant of certiorari is warranted

under Rule 10(c). See, e.g., Lambert v. Wiklund, 520 U.S.

292, 293 (1997) (certiorari granted "because the Ninth -

Circuit's holding is in direct conflict with our precedents.")

See also Stern & Gressman § 4.5 at 232-233.

In Turner v. Safley, 482 U.S. 78 (1987), this Court

established a two-prong test to consider the impact of prison

regulations on prisoners’ Constitutional rights. The Court

held that "a prison inmate ‘retains those [constitutional]

rights that are not inconsistent with his status as a prisoner or

with the legitimate penological objectives of the correction

system.'" Id. at 95, citing Pell v. Procunier, 417 U.S. 817,

822 (1974). The Court then explained the standards to be

applied to each prc yx of this two-part test.

With respect to the first-prong, whether a prisoner's

constitutional rights are "inconsistent with his status as a

prisoner," the inquiry is whether the right at issue is

"unaffected by the fact of confinement or the pursuit of

legitimate corrections goals." Turner, 482 U.S. at 96. In

other words, the lower courts had to assess whether

sufficient "elements" or "incidents" of a prisoner's

Constitutional rights survived incarceration. Id.

Instead of adhering to the Court's precedent in

Turner, the Ninth Circuit held that the right to procreate is

inconsistent with incarceration based on a different standard:

"[C]onsideration of the nature and goals of the correctional

system, including isolating prisoners, deterring crime,

punishing offenders, and providing rehabilitation." Gerber v.

Hickman, 291 F.3d at 622. The Ninth Circuit's adoption of

this subjective new standard is at odds with the Court's

Turner decision. Under the guise of "the nature and goals of .

the correctional system," the Ninth Circuit imposes no limits

on the denial of prisoners’ fundamental Constitutional rights,

id

save, perhaps, violations of the Eighth Amendment

prohibition against cruel and-unusual punishment. The

Ninth Circuit was not at liberty to ignore this Court's

precedent and to establish a different and subjective standard

which creates a nearly irrebuttable presumption that would

uphold prison regulations in violation of an inmate's

Constitutional rights.

As stated by J. Tashima, writing for the dissent in

Gerber v. Hickman, 291 F.3d 617 (2002):

The majority cites the "nature and goals of a prison

system," but fails to identify even one way in which

accommodating Gerber's request would be

inconsistent with the legitimate needs of prison

facilities. Id. at 626.

Although J. Kozinski joined in J. Tashima’s dissent,

he further elaborated on this point in his dissent:

_ The majority hinges its opinion on the proposition

that "the right to procreate is fundamentally

inconsistent with incarceration,” Maj. Op. At 7584,

but does not explain how. Id. at 629.

Is procreation one of those rights the exercise of

which is inconsistent with the prisoner's loss of his

freedom of locomotion? Apparently not, at least as

Gerber proposes to exercise it. Gerber is not asking

to go home for a conjugal visit, not to enjoy such a

visit within the prison; he does not seek to loosen the

strictures of his confinement in the least. Gerber

- asks only to engage in activities that prisoners are

already free to engage in (see steps 1-3 above). That

these activities [ejaculating into a plastic cup to be

mailed from the prison] might result in the creation of

15

a life outside prison walls is no more inconsistent

with Gerber's status as a prisoner than is any other

consequence of mailing materials from prison to the

outside world. Jd. at 630 (emphasis added).

Had a factual inquiry been conducted under Turner, it

would have become apparent that various aspects of

petitioner's right to procreate are "unaffected" by his

confinement. For example, petitioner's ability to have a

child with-his wife (i) is a reaffirmance of, and exercise of,

his and his wife's Christian faith, (ii) would provide

emotional support and love to petitioner over the long-term

of his confinement, and (iii) would demonstrate petitioner's

personal commitment and dedication to his wife and family.

These attributes survive incarceration and in fact should

contribute to stability within the penal system.

There is nothing on the record, in connection with

respondent's Fed. R. Civ. P. 12 motion to dismiss, that

allowed the Ninth Circuit to conclude, as a matter of law,

that petitioner's fundamental right to procreate does not

survive incarceration, especially by means of artificial

insemination through the use of outgoing mail from the

prison. At the very least, the Ninth Circuit should have

considered whether there are "incidents" of the right to

procreate which are "unaffected" by the fact of petitioner's

confinement "or the pursuit of legitimate corrections goals”

and whether "these remaining elements form a

constitutionally protected [right] in the prison context."

Turner, 482 U.S. at 96. That is the analysis the Court

engaged in with respect to the marriage regulation which was

at issue in Turner, and that is the same factual inquiry which

the lower courts were required to undertake in this instance.

Alternatively, amicus respectfully asks the Court to

further instruct the lower courts with regard to the factors

16

that must be considered in determining whether a prisoner's

constitutional rights are "unaffected" by incarceration or are

"inconsistent" with his status as a prisoner.

Il. Fundamental Notions Of Due Process Confirm

That, In California, Incarceration Does Not

Terminate The Constitutional Right To Procreate.

Certiorari is appropriate under Rule 10(c) because the

Ninth Circuit's decision is contrary to precedent of this

Court, which holds that procreation, within the marital

relationship, is a fundamental right. See Griswold v.

Connecticut, 381 U.S. 479 (1965). Moreover, the Ninth

Circuit's ruling is clearly erroneous and violates fundamental

rights available to petitioner, and to thousands of other

prisoners, under California's Constitution. Therefore,

certiorari is also appropriate pursuant to the Rules of

Decision Act, 28 U.S.C. § 1652."°

In his dissenting opinion, Judge Kozinski noted that

the warden's decision could not be sustained because it

violates notions of due process — after all, the California

Department of Corrections allows conjugal visits and "some

of these visits will result in procreation." Gerber v.

Hickman, 291 F.3d at 631. Judge Kozinski also pointed out

that there was no evidence of any legislative intent to cut-off

an inmate’s right to procreate. Id. Judge Kozinski was

absolutely correct.

"The power to deprive a prisoner of his civil nghts

and to restore them is one that resides in the Legislature."

15 Cal. Att. Gen. Ops. 38 (1950), citing Calif: Highway

Comm. v. Indus. Acc. Comm., 200 Cal. 44, 48, 251 P. 808

(1926) (legislative intent was to provide certain limited civil

10 See Frisby v. Schultz, 487 U.S. 474, 482 (1988); Stern & Gressman

§ 4.10 at 242-243.

17

rights to inmates engaged in work program). In fact when

California's Legislature initially enacted Cal. Penal Code

§ 2600 (hereinafter "Section 2600"), the provision became

known as "the civil death doctrine" because it deprived

inmates of most fundamental rights.

As a result of the 1975 revisions to Section 2600,

prisoners in California could "be deprived of such rights, and

only such rights, as is necessary in order to provide for the

reasonable security of the institution in which he is confined

and for the reasonable protection of the public." The term

"rights" under Section 2600 was defined by the California

Supreme Court to mean those rights afforded to non-

confined individuals residing in California. DeLancie v.

Superior ‘Court, 31 Cal. 3d 865, 868, 647 P.2d 142, 183 Cal.

Rptr. 86€ (1982), overruled on other grounds, People v.

Loyd, 27 Cal. 4" 997, 45 P.3d 296, 119 Cal. Rptr. 2d 360

(2002). And, the California Supreme Court in In re Arias,

42 Cal. 3d 667, 690-691, 725 P.2d 664, 678 230 Cal. Rptr.

505, 519 (1986) confirmed that the "rights" at issue under

Section 2600 "must begin with a discussion of the rights of

non confined citizens." In rejecting the notion that "rights"

under Section 2600 are "circumscribed by cases that define

prisoners’ rights under the federal Constitution," the

California Supreme Court stated: "This is not a proper

approach for analyzing claims under that statute." Id. at

690, 725 P.2d at 678, 230 Cal. Rptr at 518. And, the right to

procreate is not only protected by the First and Fourteenth

Amendments to the United States Constitution, it is also

protected under the California Constitution. See

Conservatorship of Valerie N., 40 Cal. 3d 143, 161, 707 P.2d

760, 219 Cal. Rptr. 387 (1985).

California's Legislature further amended Section

2600 in 1994. The provision now uses language identical to

the second-prong of the Turner test and states that a prisoner

18

may be deprived of such rights “as is reasonably related to

legitimate penological interests." Although a factual inquiry

under the second-prong of the Turner test must be conducted

to determine if a regulation "is reasonably related to

legitimate penological interests," the express language of

Section 2600, and the California Supreme Court's ruling in

Thompson v. Department of Corrections, 25 Cal. 4" 117,

130, 18 P.3d 1198, 105 Cal. Rptr. 2d 46 (2001), left

unchanged the preliminary inquiry under Section 2600:

"Rights" afforded to prisoners are the same ones which are

possessed by non-confined residents of California.

The Ninth Circuit failed to take account of the

California Supreme Court decisions in DeLancie, In re Arias

and Conservatorship of Valerie N. which establish that Mr.

Gerber has a fundamental right to procreate under the

California Constitution. There is no predicate determination

of whether a constitutional "right" survives incarceration

under California law. The Ninth Circuit's ruling in this

regard conflicts with the pronouncement of the state of

California's highest court with respect to the meaning of

"rights" under Section 2600.

Because Mr. Gerber and all other prisoners residing

in California are presumed to have the same rights as non-

incarcerated individuals, the Ninth Circuit could not, as a

matter of law, determine that the right to procreate does not

survive incarceration. The Ninth Circuit committed clear

error, and this Court should grant certiorari to correct this

error which will impact the state Constitutional rights of

thousands of prisoners confined in the California state prison

system.

19

CONCLUSION

An inmate's right to procreate, by means of artificial

insemination outside prison walls, has no bearing on

penological interests. An inmate's ability to maintain and

strengthen family bonds by having children with his wife can

ultimately make the inmate's confinement easier for his

jailers. Without rationale reason, the state should not have

the ability to deprive any individual of the fundamental right

to have children. In this case, that decision also flies in the

face of the dangers perceived by this Court in Skinner with

respect to race control. The Tribe respectfully urges the

Court to grant certiorari and to reverse the Ninth Circuit

majority decision.

Dated: October 17,2002 Respectfully submitted,

Richard T. Williams

Counsel of Record

James K. Kawahara

Alex R. Baghdassarian

Alan J. Watson

HOLLAND & KNIGHT LLP

633 West Fifth Street, 21* FI.

Los Angeles, CA 90071

Telephone: (213) 896-2400

Leo G. Rydzewski

HOLLAND & KNIGHT LLP

2099 Pennsylvania Avenue, NW

Washington, D.C. 20006

Telephone: (202) 955-3000

Counsel For The Pechanga

Band of Luiseno Mission Indians

20