ANDREW J. ROSEMAN and )
vs. ) CASE NO. 79-1972RP
Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on November 9, 1979, at the Florida State Prison in Starke, Florida, and continuing on December 10, 1979, in the Fletcher Building, Tallahassee, Florida. The parties stipulated that the close of the hearing would be the date of receipt of the transcript, which occurred on January 4, 1980.
For Petitioners: Richard A. Belz
Florida Institutional Legal Services, Inc. 2614 Southwest 34th Street
For Intervenors: Diana B. McPherson
Three Rivers Legal Services, Inc.
For Respondent: Earl H. Archer, III
The issue for determination in this proceeding is whether the respondent's proposed Rule 33-3.13 relating to marriage of an innate while incarcerated constitutes an invalid exercise of delegated legislative authority.
Upon consideration of the-oral and documentary evidence adduced at the hearing, the following relevant facts are found:
The petitioner Andrew J. Roseman is an unmarried inmate at the Union Correctional Institution, Raiford, Florida, and is confined there in the custody of the respondent Department of Corrections.
The intervenor Shirley Ann Bell is a non-incarcerated person engaged to marry petitioner Roseman.
Petitioner Roseman and intervenor Bell desire to immediately marry each other. Past attempts to obtain permission from the respondent to marry were unsuccessful, and Roseman and Bell would be ineligible to marry each other if the proposed rule were adopted.
The petitioner Samuel Washington is an unmarried inmate at the Florida State Prison, Starke, Florida, and is confined there in the custody of the respondent Department.
The intervenor Anna Holden is a non-incarcerated person engaged to marry petitioner Washington,
Petitioner Washington and intervenor Holden desire to immediately marry each other. Past attempts to obtain permission from the respondent to marry were unsuccessful, and Washington and Holden would be ineligible to marry each other if the proposed rule were adopted.
For some time (at least since 1974) prior to the instant rule promulgation process, the Department has had in effect a policy directive relating to the marriage of an inmate while incarcerated. This policy is almost identical to the proposed rule being challenged in this proceeding,
In September of 1979, the respondent Department proposed the adoption of Rule 33-3.13, Florida Administrative Code, relating to the marriage of inmates while incarcerated. Notice of intent to adopt the rule was timely published in the Florida Administrative Weekly. By interoffice memorandum, the Department's regional directors were instructed to post the notice and the proposed rule on inmate and personnel bulletin boards of all institutions and offices and to circulate the same in all disciplinary, administrative and close confinement areas of all facilities.
One inmate on death row at the Florida State Prison did not recall receiving or seeing a copy of the proposed rule until the morning of the instant proceeding challenging its validity.
The proposed rule and the estimate of economic impact were received into evidence as Hearing Officer's Exhibits 1 and 2. In pertinent part proposed Rule 33-3.13 prohibits from marriage inmates Sentenced to death, inmates under Sentence of life and required to serve no less than 25 years before becoming eligible for parole and inmates to prisoners as defined in Florida Statutes Sec. 944.02(5). The proposed rule permits marriage by an inmate under only three circumstances. The inmate may marry in the event of a current pregnancy where both the inmate and proposed spouse acknowledge they are the expected parents of a child; to legitimitize a child already born; or if the inmate's release date can be determined definitely to be within one year and the inmate is a
participant in the community release and furlough program. The proposed rule describes the procedure for requesting permission to marry and the procedure for the marriage if permission is granted. One of the provisions of the rule is that the proposed Spouse is responsible for all costs when the criteria mot for a permissible marriage is to legitimitize an unborn or existing child.
The "estimate of economic impact" for proposed Rule 33-3.13 estimates the cost of the rule for next year to be $4,638.00. It further estimates the cost for an open marriage policy for next year to be $73,461.00. It was estimated that if there were no rule regulating inmate marriages, approximately 792 inmates would marry in the next year and that 84 percent of those marriages would occur at the major institutions Under the restrictions contained in the proposed rule, the number of inmates who would marry in the next year is estimated to be fifty (50)
There are approximately 20,000 inmates in Florida. There are twenty- four major facilities which each house 200 or 300 inmates or more, about thirty work-release facilities, fourteen facilities which are road prisons, vocational training centers or forestry camps, and eight probational institutional centers
-- for a total of 76 facilities. Each of the twenty-four major institutions has a disciplinary and administrative confinement area. Visitations at the major facilities are generally permitted in a public area of the facility once a week. Conjugal visits are not permitted, and no additional privileges are granted to married inmates.
Testifying on behalf of the Department were various witnesses who were accepted as experts in the areas of prison functioning and administration; religion and marriage counseling as it pertains to inmates; psychological, emotional and mental health of inmates; and prison programs and inmate behavior in regard to rehabilitation. These witnesses gave testimony regarding the Department's bases or rationale for the proposed rule in question. It was considered that the terms contained in the proposed rule were the only logical approach to a difficult social problem and that a completely open policy does not address the problem. The Department's responsibilities include the protection of society from those who commit crimes. This responsibility is carried out by providing adequate security to others and by helping the inmate in the institutional and the constitutional setting. A part of the rehabilitation process includes instilling in the inmate a sense of responsibility for his actions. It was considered that, with the exception of the three circumstances wherein marriages are permitted under the proposed rule, there is no justification for an inmate to enter a marriage relationship while incarcerated. The presumptive benefits of marriage, according to one expert's observations, do not accrue when one spouse is in an institutional setting, and a marriage created while the inmate is incarcerated can often have adverse effects with regard to rehabilitation. These effects include stress due to separation, a feeling of helplessness, a lowering of self-esteem and anxieties regarding children, finances, illness and unfaithfulness. From the testimony adduced at the hearing, it appears that a prime rationale for the proposed rule is the agency's conclusion that a new marriage created in a prison setting with an incarcerated spouse lacks any tangible benefits. No studies were offered by any party as to whether marriages assist the rehabilitation of an inmate.
The agency was also concerned with security problems which would surround the actual marriage ceremony. These problems included the pulling of security personnel from other posts or duties, the introduction of contraband from those outside, the shortage and high turnover of security and clerical personnel at the institutions, the distraction provided by the ceremony and the
possibility of escapes. Other concerns of the agency included the financial costs involved for an open marriage program and the resulting detraction of funds for other Programs, Another area of concern by the agency was an observed characteristic of prison inmates of being manipulative and conniving, and the resulting victimization of the proposed or existing spouse.
CONCLUSIONS OF LAW
The petitioners have timely challenged a proposed rule of the Department on the grounds that the rule constitutes an invalid exercise of delegated legislative authority. The grounds alleged for invalidity include a defective economic impact statement, inadequate notice of the proposed rule to inmates, lack of statutory authority for the rule and that the proposed rule is arbitrary and capricious. The Department contends that it has provided an adequate estimate of economic impact and adequate notice of the proposed rule, that it has statutory authority for the rule and that the rule is reasonable. Additionally, the Department contends that the intervenors Bell and Holden lack standing to participate in this rule challenge proceeding.
As to the standing of the intervenors, the Department asserts that they are not regulated by the proposed rule which does not purport to restrict their general rights to marry, but only to regulate those of the incarcerated inmate. Such a contention is untenable. The evidence clearly demonstrates that the intervenors herein desire to marry the inmate petitioners, that they have been denied permission to do so and that, if the proposed rule is adopted, they would not be able to marry the petitioners. They are certainly substantially and adversely affected by the provisions of the rule. The intervenors have demonstrated an injury within the zone of interest intended to be regulated by the rule and have illustrated sufficient immediacy and reality to confer standing. Their interests are substantial and not illusory, Fla. Dept. of Offender Rehabilitation v. Jerry, 353 So, 2d 1230 (Fla. 1st DCA, 1978).
The petitioners and intervenors have failed to demonstrate by a preponderance of the evidence either an inadequate estimate of economic impact or inadequate notice of the proposed rule to inmates. What is required by statute is an "estimate" of economic impact. Florida Statutes, Sec. 120.54(2)(a). Based upon a careful review of the estimated statement and the testimony regarding such statement, it appears to be a good faith estimate of the fiscal impact upon operating the prison system with the proposed rule and with a rule on open marriage policies, Whether or not all the costs projected by the agency would have to be absorbed by the agency itself or could be imposed upon the marrying parties is a decision which the agency itself must make. The petitioners argued that the economic impact statement is erroneous because of a provision in the rule which states that the proposed spouse is responsible for all costs involved when the marriage is permitted to legitimitize an unborn or existing child. The agency testimony revealed that such "costs" refer only to out-of-pocket expenses such as the costs of the marriage license, blood tests and ministers if prison chaplains are not used. Other costs estimated by the agency include paperwork, counseling, a suitable place for the marriage ceremony and the time of a correctional officer and a chaplain to supervise the service. The petitioners and intervenors have failed to demonstrate that the estimate of economic impact does not comply with the statutory requirement,
In support of their contention that the Department did not provide adequate notice to inmates of the proposed rule, the petitioners offered only the testimony of one inmate on death row who did not receive a copy of the rule. This is not sufficient to demonstrate inadequate notice. The agency presented
evidence that all regional directors were instructed to post both the notice and the proposed rule on all institution and office bulletin boards and to circulate the same in all disciplinary, administrative and close confinement areas of all facilities. The fact that one out of 20,000 inmates failed to receive a copy of the notice does not illustrate noncompliance with the notice requirements. The petitioners have failed to meet their burden of proof in this regard.
As specific authority for the proposed rule, the Department cites the following statutory provisions -- Florida Statutes, Sections 20.315, 945.21, 94409. Florida Statutes Sections 945.09, 944.21 and 944.292 are cited as the law being implemented by the rule. The petitioners correctly point out that there is no Section 944.21 in the Florida Statutes. Section 20.315 gives to the Department the power to provide the necessary level of security in institutions. Section 945.21 authorizes the Department to adopt rules governing the administration of the correctional system. Section 944.09 mandates the Department to publish rules relating to the rights of inmates, rules of conduct and other matters. Section 945.09 relates to the classification and transfer of prisoners and Section 944.292 provides for the suspension of civil rights of persons convicted of a felony. The undersigned concludes that the above statutes provide the Department with authority to promulgate and implement reasonable rules relating to the marriage of inmates within its facilities.
Thus, we are left with one issue: is the challenged proposed rule a reasonable regulation of marriages or does it unconstitutionally infringe upon the rights of inmates and others affected by the rule? While the constitutionality of an existing rule may not he challenged in an administrative proceeding, a nearing Officer may consider and rule upon the constitutionality of a proposed rule Dept. of Environmental Regulation v. Leon County, 344 So.2d 297 (Fla. 1st DCA, 1977).
At least in a free society, the right to marry is a fundamental right and one of the basic civil rights of man. Skinner v. Oklahoma, 316 U.S. 535 (1942); Zablocki v. Redhail 434 U.S. 1374 (1978). As stated in Loving v. Virginia, 388 U.S. 1 (1967), among the decisions which individuals may make without unjustified government interference are personal decisions related to marriage. When making decisions involving the fundamental rights of free citizens, the courts have strictly scrutinized the legislation or action to determine whether there was a compelling governmental interest in the restriction imposed. What test should be utilized to examine the constitutionality or arbitrariness of restrictions upon the fundamental rights of prisoners has not been clearly answered.
Prisoners do not lose all rights as they walk through the prison gates. Jackson v. Godwin, 400 F. 2d 532 (5th Cir., 1968). Such rights may be reasonably limited to take into account the limitations inherent in incarceration and the concomitant security and safety risks involved.
Here, it appears from the testimony and exhibits adduced at the hearing that the prime basis upon which the challenged rule is grounded is the decision of the Department that the strained relationship which prisoners can enter to support a new marriage provides no tanigible benefits to either the inmate or his proposed spouse, except under the three instances where marriage is permitted under the rule. Second to this, the agency has determined that inmate marriages would have substantial adverse impacts upon funds, security and rehabilitation. Do these reasons, when analyzed, provide a sufficient basis for denying inmates the right to marry while they are incarcerated except in the
limited instances where there is an unborn or illegitimate child or when the inmate is in the last year of confinement?
It is recognized that the State, through its legislature, has the general power to regulate the institution of marriage. Maynard v. Hill, 125
U.S. 190 (1888). But, it is the legislature, and not an administrative agency, which has this power. And, the power to regulate is not equivalent to the power to prohibit, Even the power to regulate a fundamental right should be governed by a compelling state interest and be implemented by using the least restrictive means available.
Here, there appears to be no compelling connection between the agency's almost total prohibition of marriage and its interest in security, deterrence or rehabilitation. While the efforts of the Department to produce and foster lasting and successful marriages is laudable, it is not the function of the Department of Corrections to regulate the relationship between two persons except as the regulation may relate to security, order, deterrence or rehabilitation. The security risk involved is certainly a legitimate concern. However, there are means other than prohibition available to the Department to avoid increased security risks and financial burdens upon the Department, These could include a limitation on the number and elaborateness of the ceremonies per leek or month, and having the ceremonies performed in the visiting area on regular visiting days with regular visitation rules being applicable, The marrying parties could he required to pay all direct and indirect costs involved. No evidence was adduced tending to prove that a limited marriage rule acted as a deterrence from criminal acts. The evidence with regard to the rehabilitative effects of and future prospects for success of a marriage entered into during incarceration was tenuous at best. No studies in this realm were offered, and most of the opinion testimony from experts would be equally applicable to any relationship with an incarcerated or institutionalized person.
Finally, the Department argues that petitioners are not substantially affected by the rule because the prohibition of marriage in the rule flows from statute, and not from the proposed rule. The Department refers to Florida Statutes, Section 944.292 which suspends the civil rights of persons convicted of a felony. If this contention were correct, the Department of Corrections would not he authorized to allow marriage in any circumstance because it is only through the governor with the approval of three members of the cabinet that civil rights may be restored. Section 8, Article iv, Florida Constitution.
Also see In re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla. 1975). Therefore, the undersigned rejects this argument and finds that the petitioners, as inmates who presently desire to marry, have standing to challenge the proposed rule.
The undersigned has carefully considered the proposed findings of fact and conclusions of law submitted by the parties. To the extent that the Proposed findings of fact are not incorporated in this Order, they are rejected as being either irrelevant and immaterial to the issues Presented for determination or not Supported by competent substantial evidence.
In summary, it is concluded that the total prohibition against marriage by inmates excent when one of three limited criterion is met constitutes an unnecessary intrusion into a basic fundamental right. There was no showing of a compelling state interest which could not be served in a less restrictive manner. While the Department may develop reasonable rules relating to the allocation of costs, time allotted and manner of conducting marriage ceremonies, it should not be permitted to prohibit one's right to marry except
in compelling circumstances. A restriction on an inmate's fundamental right which furthers an important or substantial interest of penal administration is invalid if its sweep is unnecessarily broad. Procunier v. Martinez, 416 U.S.
396 (1974). A blanket prohibition against marriage with three limited exceptions constitutes an arbitrary and capricious act and is, therefore, invalid.
Based upon the findings of fact and conclusions of law recited above, it is ORDERED THAT:
The petition to declare proposed rule 33-3.13 an invalid exercise of delegated legislative authority is GRANTED insofar as the rule prohibits all but three classes of inmates from marrying.
Done and entered this 4th day of February, 1980, in Tallahassee, Florida.
DIANE D. TREMOR
Florida Institutional Legal Services, Inc.
Diana B. Pherson
Three Rivers Legal Services, Inc.
Earl H. Archer Carroll Webb, Executive Director Department of Corrections Administrative Procedures
Louie L. Wainwright
Corrections Bureau of Administrative Code 1311 Winewood Boulevard 1802 Capitol Building
