STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNA HOLDEN, )

)

Petitioner, )

and )

)

SAMUEL WASHINGTON, ) CASE NO. 79-1814

)

Intervenor, )

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Gainesville, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on May 21, 1980. The Division of Administrative Hearings received the transcript of proceedings on June 17, 1980. The parties were represented by counsel:

APPEARANCES

For Petitioner: Diana B. McPherson, Esquire

309 Northwest First Street Gainesville, Florida 32601

For Respondent: Gerald B. Curington, Esquire

Department of Legal Affairs Suite 1501, The Capitol Tallahassee, Florida 32301

For Intervenor: Richard A. Belz, Esquire

2614 Southwest 34th Street Gainesville, Florida 32608

At the outset of the hearing, the parties stipulated that petitioner and intervenor had each sought permission of respondent to marry and had been turned down.

In the course of the hearing, the parties stipulated that the issue for resolution is whether, on the facts of this case, respondent should permit petitioner and intervenor to marry each other. Petitioner contends that she has a legal right to marry intervenor. Respondent denies the existence of any such right and takes the position that the marriage should not be permitted as a matter of policy. Respondent disavowed any reliance, however, on its proposed administrative rule or its directives on the subject of inmate marriage. Even though the validity of the proposed rule and at least one of the directives is still being litigated (according to counsel), respondent stipulated to going

forward on the facts of this particular case alone, without the benefit either of the proposed rule or of the directives.

FINDINGS OF FACT

1. Petitioner Anna Holden is a forty-five year old white woman whose first marriage ended in divorce, after fifteen years, in January of 1973.

   Petitioner's youngest child, a son, lives with her in Gainesville, Florida. Petitioner works forty hours a week for the Alachua County Health Department.

   
   

2. Intervenor Samuel Washington, petitioner's intended, is a twenty-seven year old black man who has never been married. He has, however, fathered an illegitimate daughter, who is now eight years old and lives with her mother and four siblings in Largo, Florida. Intervenor has never supported his daughter or sought to obtain custody. He is presently incarcerated at Florida State Prison, a maximum security facility, as punishment for aggravated sexual battery of a woman in June of 1976. His presumptive release date is in March of 1981. Intervenor has previously been convicted of breaking and entering and of aggravated assault on another woman.

   
   

3. Ms. Holden and Mr. Washington met each other in early 1976, and began living together in March of 1976. They were living together at the time of the offense for which he is now imprisoned. Petitioner testified that she considered intervenor and herself husband and wife and that they both wore wedding rings. They have never been legally married to each other. After they had known each other four months, he proposed marriage to her, and they are now engaged to be married.

   
   

4. For the past three or four summers, petitioner has spent vacations with intervenor's daughter. Petitioner and the daughter have also spent weekends together and gone together to visit the child's father. Petitioner has investigated day care centers and looks forward to making a home for intervenor and his daughter, upon his release from prison. Petitioner testified that she and intervenor love each other, and that she and intervenor's daughter love each other; she wants to give him a "link back to home and . . . something to work for." (T. 15).

   
   

5. Petitioner visits intervenor weekly. She has the same visiting privileges respondent grants spouses of inmates. Respondent does not allow conjugal visits. Petitioner's visits to intervenor are spent on a portion of the prison grounds known as the visiting park. Ordinarily, 25 to 30 prisoners receive visitors between the hours of nine o'clock in the morning and three o'clock in the afternoon on visiting days. During visits, people stand around in groups or sit on benches. A notary public could effect the civil marriage between an inmate and a visitor inconspicuously during visiting hours, without creating a security problem. (Testimony of Councilman, T. 79)

   
   

6. Bill Councilman, respondent's chaplaincy services coordinator, testified as an expert in religious and marriage counseling, without objection. In general, in his opinion, marriage has very few benefits in an institutional environment. Prison tends to destroy previously existing marriages. The incarcerated husband is likely to suffer a "castration complex," in general, in his opinion: Either his wife gets along fine without him, so that he feels unneeded, or she does not do well without him, in which case he is helpless to do anything about it. In general, according to the Rev. Mr. Councilman, marriage creates false hopes, causes an inmate husband anxiety, makes him consider trying to escape, and results in conflict between the inmate and prison

   guards and between the inmate and fellow prisoners who pry into his personal affairs.

   
   

7. While "there may be an occasional experience where there would be benefits gained" (T. 51), the consequences of marriage would be adverse for intervenor, in the opinion of the Rev. Mr. Councilman, and the prognosis for a successful marriage is poor. Although he does not know the petitioner or the intervenor personally, he has read the intervenor's file, which includes a personal history and the results of certain psychological tests (which were not specifically designed to predict success in marriage). The file itself was not offered in evidence.

   
   

8. David A. Schriemer, a mental health coordinator in respondent's employ testified as an expert in psychology and mental health, without objection. In his opinion, marriage by an inmate does not secure the presumptive benefits of marriage and is generally inadvisable. Any increase in the inmate's self esteem is likely to be short-lived, giving way to fear, suspicion and depression. Depression can result in aggression, hostility, a high level of anxiety, and escape attempts. Mr. Schriemer does not know the petitioner or the intervenor personally, but he has read the intervenor's file and concluded that intervenor's case is "a stereotypical example . . . in a predictive sense." (T.

   100) In all likelihood, according to Mr. Schriemer, intervenor's marriage to petitioner would fail and have adverse consequences for the intervenor.

   
   

9. Ronald B. Jones, director of respondent's adult services program office, testified as an expert in prison administration, without objection. He is opposed to petitioner's marrying intervenor because of the difference in age and "the abnormal situations that are created by marriage" such as "[s]tress factors" (T. 112); because when intervenor arrived at respondent's Reception and Medical Center, "he claimed [petitioner] as his legal wife . . . [to gain] faster visiting privileges" (T. 111); because the petitioner and the intervenor knew each other only briefly before his incarceration; because the ceremony itself would add little to the existing relationship; and finally, because "marriage in and of itself is not a fundamental right" (T. 112) so that it falls to respondent "to determine what is reasonable and responsible." (T. 113)

   
   

10. Messrs. Councilman, Schriemer and Jones all share the view that no inmate should be permitted to marry except in order to legitimize a child; or in the event of a pregnancy where both the inmate and the proposed spouse acknowledge that they are the expectant parents; or where an inmate participates in a community release or furlough program and has a definite release date less than one year off. These exceptions to a general prohibition reflect respondent's current practice and were embodied in proposed Rule 33-3.13, Florida Administrative Code, which has been declared invalid. Andrew J. Roseman et al. v. State of Florida Department of Corrections, No. 79-1972R (Final order entered Feb. 4, 1980) appeal pending sub nom. State of Florida, Department of Corrections v. Andrew J. Roseman et al., No. UU-0192 (Fla. 1st DCA; notice of appeal filed March 6, 1980). Respondent has not attempted to promulgate any other administrative rule governing the marriage of inmates.

    
    

11. Whatever the validity of respondent's employees' views as to the psychological transformation marriage may work in inmates generally, the weight of the evidence in the present case supports Mr. Jones' view, when he testified that, "the situation won't change [by virtue of petitioner's marriage to intervenor, except legally. Intervenor is] not going to do anything any different tomorrow [if married] than he would today [unmarried]: (T. 120). the ceremony would effect a change in legal status only. Petitioner would have her

    "total commitment . . . on paper" (T. 19), but, aside from this legalistic change, life would go on in the same way for intervenor inside and for petitioner outside the prison walls. Prospects for intervenor's rehabilitation would neither be enhanced nor diminished by his marriage to petitioner.

    
    

12. Petitioner has offered to pay any costs that the marriage might entail.

    
    

13. The parties' proposed findings of fact have been considered and adopted except to the extent that they have been deemed irrelevant or unsupported by competent evidence.

    
    

    CONCLUSIONS OF LAW

    
    

14. It may be constitutionally permissible for a State to forbid persons convicted of serious crimes to marry during their incarceration and perhaps afterwards, as well. Johnson v. Rockefeller, 365 F. Supp. 377 (S.D.N.Y. 1973) aff'd sub nom. Butler v. Wilson, 415 U. S. 953 (1974). But see Zablocki v. Redhail, 434 U.S. 374 (1978), and Skinner v. Oklahoma ex rel. Williamson, 316

    U.S. 535 (1942). In Florida, however, the legislature has enacted no statute purporting to impose any disability with respect to marriage as punishment for any crime. No party to these proceedings contends otherwise. No Florida constitutional or statutory provision forbids inmate marriages. Andrew J. Roseman et al. v. State of Florida Department of Corrections, No. 79-1972R (Final order entered Feb. 4, 1980) appeal pending sub nom. State of Florida, Department of Corrections v. Andrew J. Roseman et al., No. UU-192 (Fla. 1st DCA; notice of appeal filed March 6, 1980). In fact, respondent allows inmate marriages in some circumstances. Respondent would permit intervenor to marry the mother of his illegitimate daughter.

    
    

15. Respondent contends that the "state maintains an interest in the 'regularity and integrity of the marriage relation.' Estin v. Estin, 134 U.S.

    541 (1948). Lavine v. Vincent, 401 U.S. 522 (1971)." Respondent's proposed conclusions of law, p. 8. This general proposition is clearly correct, but it does not follow that authority and responsibility for vindicating this interest have been vested in respondent. Decisions by respondent as to which inmates can marry whom affect the rights not only of inmates but also of children and of other citizens who have never been convicted of crime. Authority to make such decisions could only be conferred on respondent by statute. E.g., Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75 (Fla. 1st DCA 1974).

    
    

16. In his proposed conclusions of law, respondent's counsel identifies the statutory basis on which respondent relies for authority to forbid petitioner's marriage to intervenor as Section 20.315 and Chapter 945, Florida Statutes (1979). In pertinent part, Section 20.315, Florida Statutes (1979), declares respondent's purposes to include "protect[ing] society by providing incarceration," Section 20.315(1)(a), Florida Statutes (1979), "provid[ing] the necessary level of security in institutions," Section 20.315(1)(g), Florida Statutes (1979), and "protect[ing] society by substituting for retributive punishment methods of training and treatment which correct and rehabilitate," Section 20.315(1)(b), Florida Statutes (1979), with emphasis on the "'whole person' approach to rehabilitation." Section 20.315(2)(a), Florida Statutes (1979). In order to accomplish these purposes, respondent has been granted "supervisory and protective care, custody and control of the inmates . . . property, and all other matters pertaining to . . . Florida State Prison." Section 945.025(1)(d), Florida Statutes (1979).

17. In the present case, the evidence showed that permitting petitioner and intervenor to marry would not affect prison security or intervenor's rehabilitation. In these factual circumstances, respondent has no statutory authority to forbid petitioner's marrying intervenor. See Edgerton v. International Co., 89 So.2d 388 (Fla. 1956) ("If there is a reasonable doubt as to the lawful existence of the particular power that is being exercised, the further exercise of the power should be arrested." At 490) "It has long been established law that a statutory agency possesses no inherent powers." Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75, 76 (Fla. 1st DCA 1974). "There must be some basis in a statute for the exercise of jurisdiction and power involved in the making of an order by an administrative agency." State ex rel. Greenberg v. Florida State Board of Dentistry, 397 So.2d 628, 635 (Fla. 1st DCA 1974) cert. dismissed 300 So.2d 900 (Fla. 1974). Respondent and all other "[a]dministrative agencies are creatures of statute and have only such powers as statutes confer." Fiat Motors of North America, Inc.

    v. Calvin, 356 So.2d 908, 909 (Fla. 1st DCA 1978). When the legislature does grant power to an administrative agency, "[t]he statute must so clearly define the power delegated that the administrative agency is precluded from acting through whim, showing favoritism, or exercising unbridled discretion." Lewis v. Bank of Pasco County, 346 So.2d 53, 56 (Fla. 1977).

    
    

18. Although respondent lacks authority to forbid the marriage, its statutory responsibility for maintaining prison security and supervisory custody of intervenor, see Chapter 945, Florida Statutes (1979), necessarily and by fair implication confers authority on respondent to set reasonable conditions on the time and place for the ceremony.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

1. That respondent permit petitioner to marry intervenor within fifteen days of entry of the final order is this matter, at such time and place as respondent shall specify.

   
   

2. That respondent bill petitioner for medical tests and other costs it may reasonably incur incident to the marriage.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

COPY FURNISHED:

Diana B. McPherson, Esq.

309 N.W. First Street Gainesville, Florida 32601

Gerald B. Curington, Esq.

Department of Legal Affairs The Capitol, Suite 1501 Tallahassee, Florida 32301

Richard A. Belz, Esq. 2614 S.W. 34th Street

Gainesville, Florida 32608

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNA HOLDEN,

Petitioner,

and

SAMUEL WASHINGTON,

Intervenor,

vs. CASE NO. 79-1814

DEPARTMENT OF CORRECTIONS,

Respondent.

/

FINAL ORDER

This cause came on to be heard upon Petitioner's request for a formal hearing pursuant to Section 120.57(1), F.S. Pursuant to said request this cause was forwarded to the State of Florida, Division of Administrative Hearings for a formal hearing. A hearing was held on May 21, 1980, and a recommended order was issued on July 17, 1980.

it is now found as follows:

1. The findings in the recommended order are adopted with the following exceptions which are specifically rejected:

   
   

   1. Prospects for intervenor's rehabilitation would neither be enhanced nor diminished by his marriage to petitioner.

      
      

      (Recommended Order at page 6).

      
      

   2. In the present case, the evidence

      showed that permitting petitioner and intervenor to marry would not affect prison security or intervenor's rehabilitation.

      
      

      (Recommended Order at page 8).

      
      

   3. In Florida, however, the legislature has enacted no statute purporting to impose any disability with respect to marriage as punishment for any crime. No party to these proceedings contends otherwise. No Florida constitutional or statutory provision forbids inmate marriages. Andrew J. Roseman et al. v State of Florida Department of Corrections, No. 79-1972R (Final order enter Feb. 4, 1980) appeal pending sub nom. State of Florida, Department of Corrections v Andrew J. Roseman, et al. No. UU -192 (Fla. 1st DCA; notice of appeal filed March 6, 1980).

Black's Law Dictionary (4th Ed.) at 1437. Since the right to marry is a civil right, it necessarily follows that the right of convicted felons to marry is suspended pursuant to Section 944.292, Florida Statutes.

It is noteworthy that prior to the 1976 changes in Section 944.292, F.S., the law only suspended the rights to vote, hold public office and serve on a jury. (s. 944.292, F.S.). It appears that the Legislature intentionally extended the suspension of civil rights from just three rights to a broad "civil death" type suspension. The states right to punish and to regulate marriage both support this "civil death" statute s. 944.292, F.S., as it applies to inmate marriages. See Johnson v. Rockefeller, 365 F.Supp. 377, 380-381 (1973).

Upon consideration of the foregoing it is ordered that Intervenor be denied the right to marry Petitioner.

DONE AND ORDERED this 11th day of September 1980 in Tallahassee, Florida.

LOUIE L. WAINWRIGHT

Secretary, Department of Corrections

CERTIFICATE OF SERVICES

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded to DIANA B. MCPHERSON, ESQUIRE, 309 N.W. First Street, Gainesville, Florida 32601 and RICHARD A. BELZ, ESQUIRE, 2614 S.W. 34th Street, Gainesville, Florida 32608, by U.S. Mail this 24th day of September 1980.

GERALD B. CURINGTON

Assistant Attorney General

Docket for Case No: 79-001814

Orders for Case No: 79-001814