Reply Brief — Koutnik v. Brown, 128 S. Ct. 39 (2007) (No. 06-1171)

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No. 06-1171

OFFICE ~¢ THE CIT:

IN THE

Supreme Court of the United States

jOSEPH D. KOUTNIK,

Petitioner,

Vv.

LEBBEUS BROWN, GERALD A. BERGE,

AND MATTHEW J. FRANK,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A~peals for the Seventh Circuit

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

BARRY LEVENSTAM

Counsel of Record

HOWARD S. SUSKIN

SHORGE K. SATO

JENNER & BLOCK LLP

330 N. Wabash Ave.

Chicago, IL 60611

(312) 222-9350

July 31, 2007 Attorneys for Petitioner

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TABLE OF CONTENTS

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I. This Court Should Grant This Petition To

Resolve The Circuit Split Over The Appropriate

Standard Of Review To Apply To Claims Of

Outgoing Prisoner Mail Censorship.............ccccseeeeee 1

A. The Cases Cited By Respondents Reflect A

Minority View That Is Contrary To This Court's

Precedent That Martinez And Turner Are

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B. Respondents’ Assertion That Martinez And

Turner Are “Extremely Similar In Application”

Ignores The Substantial Difference Between

“Rational Basis” Review And “Intermediate

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II. This Court Should Grant This Petition To

Resolve Whether The State May Censor

Outgoing Prisoner Mail Based On Its View That

The Mail’s Content is inconsistent With The

State’s General Rehabilitation Goals. 0.0.0.0... 5

A. The Seventh Circuit Decision Contradicts

Martinez, Which Does Not Permit Censorship Of

Outgoing Prisoner Mail Because Its Content Is

Merely Inconsistent With General Rehabilitation

IIIA Ledihes snsbecotnapeies<slebnennbinniieigsennelipdentaleininiidiidaebiaudbataiiaitin 6

B. This Court Should Not Abstain From Reviewing

This Important Question Out Of Deference To

Prison Officers Or Unsupported Security

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TABLE OF AUTHORITIES

Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464 (1947) ......... 7

Agostini v. Felton, S21. US. 203 (2997) ...-.creccerccvcressercescrescoves 2

Amatel v. Reno, 156 F. 3d 192 (D.C. Cir. 1998) oc ccceeeees +

Beard v. Banks, 126 S. Ct. 2572 (2006) .........:ecssscesersseseeneees 3-4

Bd. of Trustees of the State Univ. of New York v. Fox,

SRF I i rteninereriromicipneninrcnvenvacnesimmiiennmeeion +

Central Hudson Gas & Electric Corp. v. Public Service

Commission of New York, 447 U.S. 557 (1980)........0cce0 4

Nasir v. Morgan, 350 F. 3d 366 (3d Cir. 2003)..........:ccceee 2

Overton v. Bazzetta, 539 U.S. 126 (2003) «0... cccceesceseersereeees 3

Procunier v. Martinez, 416 U.S. 396 (1974) .........c0000+ passim

State Oil Co. v. Khan, 522 US. 3 (1997) ......:.eserveccecesovevesereees 3

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

Turner v. Safley, 482 U.S. 78 (1987) .....ccccccsecserseserseneees passim

Waterman v. Farmer, 183 F. 3d 208 (3rd Cir. 1999) ............. 4

ARGUMENT IN REPLY

In their Brief in Opposition, Respondents concede that

the Courts of Appeals are in clear conflict about the

appropriate standard of review for censorship of outgoing

prisoner mail. Opp. at 5. Respondents also concede that a

substantial controversy exists over whether censorship of

outgoing prisoner mail can ever be justified in the name of

general inmate rehabilitation. Opp. at 11. On both questions

presented, Respondents’ arguments merely highlight the

reasons this Court should grant, not deny, this Petition.

I. This Court Should Grant This Petition To Resolve The

Circuit Split Over The Appropriate Standard Of

Review To Apply To Claims Of Outgoing Prisoner

Mail Censorship.

The first question presented by Petitioner is whether,

and to what degree, this Court’s opinion in Thornburgh v.

Abbott, 490 U.S. 401 (1989), preserved, reversed, or modified

the First Amendment standard of review established in

Procunier v. Martinez, 416 U.S. 396 (1974), in the context of

state censorship of outgoing prisoner mail. Petitioner has

identified a substantial circuit split on this question. Pet. at

9-11. Some courts believe that Thornburgh implicitly reversed

Martinez, even in the outgoing prisoner mail context. Id. at

9-10. These courts apply the “reasonableness” standard set

forth in Turner v. Safley, 482 U.S. 78 (1978). Pet. at 9-10. Other

courts hold that Thornburgh preserved the Martinez standard

of review for outgoing prisoner mail. Pet. at 10-11.

Respondents’ arguments fail to acknowledge that

Martinez, which established “intermediate scrutiny” as the

standard of review for prisoners’ claims of outgoing mail

censorship, is still fundamentally distinct from Turner,

which established “rational basis” review for speech

restrictions within prison walls. .

A. The Cases Cited By Respondents Reflect A

Minority View That Is Contrary To This Court's

Precedent That Martinez And Turner Are Distinct.

While conceding the existence of this circuit split,

Respondents attempt to downplay its significance, claiming

that “a close reading of the cases applying Martinez and

those applying Turner indicates that the difference between

the two standards is largely superficial.” Opp. at 5. Citing to

language from a Third Circuit and an Eighth Circuit

decision, Respondents contend that this circuit split is not a

“compelling” reason to grant certiorari. Id. at 7.!

Respondents cite, however, to only one side of the circuit

split. Several circuits, including the First, Sixth, Ninth, and

Tenth Circuit Courts of Appeals, continue to apply Martinez

as a distinct standard to claims of censorship of outgoing

prisoner mail. Opp. at 5; Pet. at 10-11. Respondents concede

that the decisions that they cite conflict directly with the

decision in this case, where the Seventh Circuit “rejected

respondents’ argument that the court should apply the

Turner standard to out-going prisoner mail.” Opp. at 7.

| The Third Circuit case, Nasir v. Morgan, 350 F. 3d 366 (3d Cir.

2003), involved a challenge to a prison policy regulating inmate

correspondence with former prisoners. Id. at 368-69. The Third

Circuit first determined the standard of review, concluding that

Thornburgh preserved Martinez for outgoing mail. Id. at 370. The

Court reviewed the policy on incoming mail under Turner, and

then reviewed the policy on outgoing mail under Martinez. Id. at

371. Although the Court noted in its Martinez discussion that

“much of the discussion, therefore, that proceeded in Turner is

relevant here,” the Court still performed the substantial, additional

analysis concerning whether the policy was “narrowly drawn”

and “no greater than necessary or essential” under Martinez. Id.

Moreover, the decisions cited by Respondents also

conflict with Martinez and Thornburgh, impermissibly so.

Courts of Appeals must follow this Court’s precedent and

may not conclude that more recent Supreme Court cases

“have, by implication, overruled an earlier precedent.”

Agostini v. Felton, 521 U.S. 203, 237 (1997). It remains this

Court's sole prerogative to overrule its own precedent

(although Martinez should not be overruled). See State Oil Co.

v. Khan, 522 US. 3, 20 (1997). Respondents’ argument that

the existing circuit split should be disregarded as

“superficial” is based on their flawed assumption that

Martinez could be rendered obsolete by lower courts.

B. Respondents’ Assertion That Martinez And Turner

Are “Extremely Similar In Application” Ignores

The Substantial Difference Between “Rational

Basis” Review And “Intermediate Scrutiny.”

Respondents argue that the Martinez and Turner tests are

“extremely similar in application” because the “first prong

of both tests asks whether there is a relationship between the

prison regulation and a legitimate government interest.”

Opp. at 6. Respondents assert that the “latter portion of each

test examines the strength of the relationship between the

regulation and the government interest.” Id. Aside from

this asserted facial resemblance, however, the two tests ask

fundamentally different questions.

Turner provides for “rational basis” review. See Overton

v. Bazzetta, 539 U.S. 126, 132 (2003). The first Turner factor

states that a regulation is justified where the government can

show a “valid, rational connection” between the prison

regulation and the legitimate penological interest. 482 U.S.

mae”

at 89.2, Other courts have also noted the similarity between

Turner and “rational basis” review. See Waterman v. Farmer,

183 F. 3d 208, 215 (3d Cir. 1999) (describing the Turner test as

“similar to rational-basis review.”) (Alito, C.J.); Amatel v.

Reno, 156 F. 3d 192, 198-99 (D.C. Cir. 1998) (observing that

Turner is “if not identical, something very similar” to

rational basis review).

Martinez provides for “intermediate scrutiny.” The

second prong of Martinez provides that restrictions on

outgoing prisoner mail are permitted only where they are

“no greater than is necessary or essential” to advance

legitimate penological interests. Pet. at 7. This Court has

“repeatedly stated” that such language denotes the

“intermediate scrutiny” standard of review. Bd. of Trustees of

the State Univ. of New York v. Fox, 492 U.S. 469, 476-77 (1989).

or example, in Central Hudson Gas & Electric Corp., 447 US.

57 (1980), this Court described intermediate scrutiny as

requiring evidence that a speech restriction is “not more

extensive than is necessary to serve that interest.” Id. at 566.

As the district court in this case noted, this “intermediate

scrutiny” standard for commercial speech restrictions is

“strikingly similar to the standard announced in Martinez.”

Pet. App. at 25a (citing Central Hudson).

Although “intermediate scrutiny” is not a “least-

restrictive means” test, this Court has observed that it is still

“far different .. . from the ‘rational basis’ test.” Fox, 492 U.S.

at 480. Under “rational basis” review, “it suffices if the law

could be thought to further a legitimate governmental goal,

2 This Court recently recognized that “the second, third, and fourth

factors,” which Respondents assert are the limiting portions of

Turner, “add little, one way or another, to the first factor’s basic

logical rationale.” Beard v. Banks, 126 S. Ct. 2572, 2580 (2006).

without reference to whether it does so at inordinate cost.” Id.

(emphasis added). Conversely, “intermediate scrutiny”

requires “the cost to be carefully calculated.” Id.

In this case, while the Seventh Circuit ostensibly applied

the Martinez standard of review, it failed to apply the second

Martinez prong, and thus provided only “rational basis”

review. Pet. at 11-12. This hybrid or half-Martinez approach

only exacerbates the confusion among the courts.

Respondents’ argument in defense of the Seventh Circuit —

that “in application,” the boundaries between the two

distinct standards of Turner and Martinez are becoming

blurred —reveals the confusion in the Courts of Appeals as

to whether, and to what degree, Thornburgh preserved,

modified, or reversed the Martinez standard. It is a reason to

grant, not deny, this Petition.

II. This Court Should Grant This Petition To Resolve

Whether The State May Censor Outgoing Prisoner

Mail Based On Its View That The Mail’s Content Is

Inconsistent With The State’s General Rehabilitation

Goals.

As for Petitioner's second question, Respondents

concede that the Third Circuit and the D.C. Court of Appeals

are in direct conflict about whether the First Amendment

permits content-based censorship in furtherance of a general

interest in inmate rehabilitation. Pet. at 14 - 15. Respondents

do not defend the original basis for the Seventh Circuit's

opinion. Instead, Respondents argue that this Court should

abstain from reviewing Petitioner's claim out of deference to

prison administrators. Opp. at 7-8. Respondents also raise

the rejected claim that allowing Petitioner's correspondence

would have been detrimental to institutional security. Opp.

at 9-10. Neither position has any merit.

A. The Seventh Circuit Decision Contradicts Martinez,

Which Does Not Permit Censorship Of Outgoing

Prisoner Mail Because Its Content Is Merely

Inconsistent With General Rehabilitation Goals.

The Seventh Circuit held that the censorship was

permissible because prison officials deemed the content of

Petitioner's letter to be insufficiently “constructive” or

“wholesome.” Pet. App. at 13a. This ruling reflected Officer

Brown’s original justification, that allowing Petitioner to

“merchandize his design was . . . incompatible with the

facility's efforts to rehabilitate him.” Pet. App. at 3a; Opp. at

10.

Allowing the censorship of outgoing prisoner mail

because the State deems its content to be insufficiently

“constructive” or “wholesome,” or because it is otherwise

“incompatible” with the State’s general rehabilitation goals,

would allow the censorship of the very speech protected in

Martinez, which struck down a policy generally authorizing

the censorship of outgoing mail containing “inflammatory

political, racial, religious, or other views” or “otherwise

inappropriate” content. Pet. at 12-13. In their Brief,

Respondents fail to address this contradiction, choosing to

simply repeat the Seventh Circuit’s flawed analysis, almost

word-for-word. Compare Opp. at 12-13 with Pet. App. at 12a-

13a.

B. This Court Should Not Abstain From Reviewing

This Important Question Out Of Deference To

Prison Officers Or Unsupported Security Concerns.

Respondents argue that this Court should abstain from

reviewing this important question out of broad deference to

prison officers. Opp. at 7-8. Although some deference may

be accorded to determinations made in the day-to-day

administration of prisons, this policy of deference is not a

7 act

broad “hands off” posture towards prisoners’ Constitutional

claims. See Martinez, 416 U.S, at 406 (noting and rejecting the

“hands off posture” of lower courts); see also Turner, 482 U.S.

at 84 (“Prison walls do not form a barrier separating prison

inmates from the protections of the Constitution.”)

Respondents attempt to bolster their call for deference to

prison officials by introducing an alternative basis for

censorship: the State’s broad interest in institutional security.

Opp. at 9-10. But this Court has already concluded that

outgoing correspondence “cannot reasonably be expected to

present a danger to the community inside the prison” merely

because it “contains inflammatory racial views.” Thornburgh,

490 U.S. at 411-12. Citing Thornburgh, the District Court

specifically rejected Respondents’ argument that Petitioner's

correspondence with a retail catalog presented any plausible

security threat to the WSPF prison environment. Pet. App. at

29a-30a. Respondents’ reassertion of this same “security”

rationale is merely an effort to dodge the question actually

framed by the decision below: whether the First

Amendment permits a prison officer to censor outgoing mail

in furtherance of general inmate rehabilitation It is not a

basis to deny the Petition.

CONCLUSION

For the foregoing reasons, and for the reasons stated in

the Petition, this Court should grant Joseph D. Koutnik’s

petition for writ of certiorari.

> Even if this Court were persuaded that this alternative “security”

justification had merit, the appropriate response would be for this

Court to grant the Petition and remand, not to deny it outright. See

Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 468 (1947).

Respectfully submitted,