recognized in turn are these emotional and spiritual dimensions of marriage are unaffected by the fact of incarceration the decision by the department of corrections decision to dr johnson from getting married on the basis that the department determined that allowing quote unquote rule breakers to marry one another would compromise prison security by undermining or specter for the person it's hard to hypothesize circumstances where that's not true right in other words if the question is is limited you know as you just described it can we have can we have a marriage ceremony go off without  arose from the unethical exploitation of the psychologist patients relationship we're not talking about some kitchen worker here or meaning that it's looking at it at this very high level of generality that the relationship was perceived to have violated rules against fraternization and that in turn was deemed to be something department could not countenance but what the right decision counseled was that that was my only too high a level of generality at which to look at that question and the question was really whether marriage should go forward with regard to the court about whether the relationship itself might be that to be undermining the security of the press and i think that's an important question for us to talk about here because the truth is the relationship continues has for the past four years mr neagle and dr johnston talked by phone or email every single day to this day so really the question is whether this half hour marriage ceremony can be allowed to go forward because all of these concerns that the department is pointing to and that the decision below pointed to really do go to that question of whether it would be reasonable or rational to prohibit general unlimited  that's not what mr newdow and dr johnson are asking for here they're just asking for an opportunity to have their marriage changed by c i read i think i guess i just don't read warden meisner his declaration as resting on you know hopelessly general you know rationale to prohibit the marriage i read the declaration to go through in some detail the various acts of deception mr johnson in johnston engaged again and then and there it's not just one right there's multiple and then from merrill reaching a conclusion that it would compromise the security and i think read in context the integrity of the facility to allow her at this time to return albeit for a brief marriage ceremony and i just see that is really very very different than the circumstances that were present and riker i think things that i think need to be said in response to that and unfortunately the decision below accepted as true a lot of what the department concluded about the relationship or what the department represented about the relationship in reality the department's own that dr johnston received was simply based on the fact that her relationship with mr new call commenced within less than two years of her having watched professional regulating friday saw a think we have to look at what was happening in the right place in terms of the violations that were happening there was a documented sexual relationship that violated the parties and women ation act happening in the freezer in the reapplying a year it can still want to get married in fact this litigation has been going on for more than two year and the department could have it any time so i don't this case by coming to salem mr needle and dr jasser and saying ok now that three decision to the highest level and it was rejected by the destiny of the secretary of the department of corrections on two occasions as reflected in our brief and admitted by the defendants in answer to the complaint so there's really no he said i don't need therapy i don't want there be in she concurred that it was not something that she had to do so after that their contacts were more capital within the department of c professional relationship well there were only a few times that they actually met in person while she was working at the department of corrections and that was mr neagle went to see her to talk to her on several occasions disputed fact that there was ever a psychologist patient relationship here and i think that's something that would be more appropriately submitted to a jury determination rather than having the district court me that conclusion as a matter of law she did indicate that she did matt mr newdow in a professional contacts and that's unavoidably true here but the question is really whether that can justify this long lasting denial of such a fundamental right as the right to marr good morning may it please the court my name is stephen kilpatrick wisconsin assistant attorney general for he was constant department of corrections employees the defendants the police the supreme court has held that courts must accord substantial professional judgment of prison administrators who bear a significant responsibility for defining the legitimate d goals of a correction system and defining the most appropriate means to accomplish them and the challengers to a decision or rule bear the burden of proving that to be unreasonable the appellants have not met that burden in proving denial of their marriage request on reasonable in the district court got it right here in my zone or used his professional judgment inmate was a rational connection the st turner factor between the denial and those interests were meisner needs to ensure the safety of the prison respect for the rules and rehabilitation of inmates could not get recorded and what was said within a few weeks after she had left but that really doesn't matter because when dr johnson left she took another job and came back in the fall of two thousand and fifteen she established  continued this relationship with her you know what i'm trying to get to is it  was providing psychological services well there was certainly a professional relationship and that is clear from the psychology examining board decision  and whether or not there was a doctor patient relationship or whether he was receiving services from a doctor while in prison is is really irrelevant semantics and what was going on was there was going going on between the two that is how they met and within weeks after that she had left that employment they began their correspondence and then when she returned to the department of corrections in the fall of two thousand and fifteen she wanted to continue this relationship she knew she had to submit a fraternization request exception she submitted it now how would no longer be significant enough to justify denial of the marriage requests like in ten years right well  me i am going to answer your question leaves me the st point i'd like to make is that this is not a permanent ban the other side wants to categorize this as a permanent ban there's nothing in the record that would show this is a permanent ban believe what happened here is we'll never know that answer the answer that question because they have never submitted a new marriage application request what they did was submitted one in december of two thousand and sixteen the denial took place in january that was about teen months or so after dr johnston had last been a d l c employee within a few months of when the warden had gotten word and read the psychology examining board the final decision that she had been exploitive to the inmates and possibly an answer to that question grosvenor is maybe two years this was still within two years of the psychology examining board has a rule that says one you can't be in a relationship as a psychologist with a client and two you can't be in a relationship with a former client until two years of time so when the marriage request came in the warden using his professional judgment accosted the rules of the psychology examining board and said look this rule professional rule there shouldn't be a relationship within two years of the end of that the patient doctor relationship it's almost like a two year cooling off period that's what the that the rule says so he made that decision and deny marriage request was made within that two year period so it's art a position that at least fifteen months on is fine to take into consideration the rule breaking not only the rule breaking of the institution work rules but the psychology exam and cordials i read your brief mr kilpatrick to go a touch further and that is to say as you do on page twenty seven that the plaintiffs are free to submit a new marriage request and presumably the state would not take that position and make that representation to the court if it was entirely futile and in other words if as a matter of policy or as a just a matter of practice  the marriage ban was permanent right i don't think you can make that representation so i mean i'm sorry are you saying that the brief seems to imply that the marriage ban was permanent no to the contrary i think you're saying they are free to submit a new request but i want to wait for a window of time to pass right you know but yes i'm reading your brief to suggest that because you know there's a possibility well it would be considered in good faith and who knows what the outcome will be right exactly anything but they can submit a new request that's right you can't promise anything but they can sit in it and you request time as time passes that would be a factor in the new warden here because the inmate has been transferred to a new wharton could take into account the rule violations of the institution violations and the psychological board examining findings and determine ok enough crime has pa so i'd like to make some some other points about about riker this is definitely a case that is different than riker based on some of the statements that have made before in riker the prison rule prevented forever visitation by a former employee with an inmate if the relationship began while the inmate was an employee that's not the case here again that's not the basis defendants relied on supply specific security concerns and riker based on being a former employee of mr reich or not the case here this isn't about whether or not there can be enough security for a brief marriage ceremony that is a factor that this court considered get into whether or not there could be a brief marriage ceremony so that's a big difference between this case and writer in riker this court held that there was no evidence in the record for the the rational relationship department of corrections here says there is a mountain of evidence that was support the warden's decision that that approval of a marriage with qwest at that time would have been detrimental and contrary exploited by the department corrections employee and clinical psychologist and that was confirmed that he believes that to be true through the psychology examining for so strong evidence of the profession judgement used by word in minds are mainly adopting and considering what the psychology examining board found so it's not so much that her licen taken away it's more of the finding that she did not believe she had violated any ethical rules and that there was exploitation  important and distinguishable interest going on here which we explained another point i like to make is the evidence the evidence here shows a big difference between rule violation and breaker and rule violations here so alias which the warden properly perceived to be intentional deception she misrepresented the nature of the relationship she had a multiple visitation forms simply saying that the relationship was professional and that they were friends not disclosing the romantic relationship and the both of them obviously continuing their relationship after that without administrator approval after of the marriage request and that was what dr what word miser believed was done purposely to avoid detection by the department of corrections staff i believe later on after the investigation found out that she had used that fifteen the letter started the phone call started and she had used her name not her name she used the new cast five that's all i have any more questions thank you i think change in terms of prison security if these two are allowed to marry as i mentioned before they are already talking on the phone or by e mail every single day and they don't see any level of change in that amount of contact so everything would stay the same in terms of dr johnson's contacts with the institution if they're allowed to marry certainly with this idea that they should just apply again because now he's at a new facility if there are several problems with that one and any other professional in her position about department of corrections i'll see on contact you know we spoke about the initial contact all her contact professional with anybody w hear anything from the department's counsel that disagreed with the characterization here and i guess i'm just saying your question that they've been made very well aware of the consequences of having not