Robert Lawson, Cross-Appellant v. Richard L. Dugger, Etc., Cross-Appellees ( 1988 )

840 F.2d 779

Robert LAWSON, Plaintiff-Appellee, Cross-Appellant,
v.
Richard L. DUGGER, etc., et al., Defendants-Appellants,
Cross-Appellees.

No. 86-5774.

United States Court of Appeals,
Eleventh Circuit.

March 3, 1988.

Carl J. Zahner, Jason Vail, Asst. Attys. Gen., Dept. of Legal Affairs, State of Fla., Tallahassee, Fla., defendants-appellants, cross-appellees.

Peter M. Siegel, Florida Justice Institute, Inc., Miami, Fla., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before JOHNSON and ANDERSON, Circuit Judges, and ATKINS*, Senior District Judge.

ON PETITION FOR REHEARING

PER CURIAM:

1

The appellants' petition for rehearing obviously failed to understand that this appeal does not solely address "prisoners' rights." Consequently, Turner v. Safley, --- U.S. ----, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and O'Lone v. Estate of Shabazz, --- U.S. ----, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), do not govern the present appeal. Turner and O'Lone addressed the standard of review in cases involving prisoners' rights. The present appeal, as was the case with Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), concerns more than prisoners' rights; it also concerns the First Amendment rights of the Temple of Love.

2

Martinez expressly reserved the proper standard of review to apply in cases involving questions of "prisoners' rights." In Turner, the Supreme Court definitively provided the proper standard of review: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 107 S.Ct. at 2261 (emphasis added). O'Lone simply applied this lenient standard to prisoners' free exercise claims.

3

This more lenient standard of review does not apply to the present appeal because the constitutional rights of nonprisoners are at issue. Post-Martinez Supreme Court precedent does not suggest otherwise. Indeed, even Turner recognized the dichotomy in standards of review depending upon whose rights are at issue:

4

[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 application of the Martinez standard, because the regulation may entail a "consequential restriction on the [constitutional] rights of those who are not prisoners."

5

107 S.Ct. at 2265-66 (quoting Martinez, 416 U.S. at 409, 94 S.Ct. at 1809 (citation omitted)).

6

In addition, the D.C. Circuit's post-Turner decision in Abbott v. Meese, 824 F.2d 1166 (D.C.Cir.1987), supports the conclusion that Martinez, rather than Turner, provides the governing standard here. In Abbott, the D.C. Circuit noted: "Although in Turner, the Court rejected application of the stricter Martinez standard to regulation of correspondence between inmates, we conclude that it did not overrule or restrict Martinez as applied to situations where the First Amendment rights of non-inmates are involved." Id. at 1170 n. 1 (emphasis added). See also Sturm v. Clark, 835 F.2d 1009, 1013-14 (3d Cir.1987) (Martinez, rather than Turner, provided governing standard of review for attorney's First Amendment claim regarding access to prisoners).

7

In conclusion, we properly selected Martinez as the controlling standard and properly applied the Martinez standard in the present case. Consequently, the appellants' petition for rehearing is DENIED. We DIRECT the Clerk of the Court to incorporate our explanation associated with this denial of the appellants' petition for rehearing as part of the panel opinion in this case.

*

Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation