# Amicus Curiae Brief — Gerber v. Hickman, Warden

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0420%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1039

## Text

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0420%3A2. Public record. Not legal advice.