Supplemental Brief — Wainwright v. Demar

aia taaaammmmanaatceaaaaaaaaaamacarmaammmmmnunumema

Supreme Court, U. S.

"1251

FILED

MAY 30 1978

In The MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1977

LOUIE L. WAINWRIGHT,

Secretary, Department of

Offender Rehabilitation,

State of Florida, and

CHARLES J. SCRIVEN,

Chairman, Florida Parole

and Probation Commission,

Petitioners,

vs.

DAVID P. DEMAR,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

STATE OF FLORIDA

SUPPLEMENTAL BRTEF OF PETITIONER

FILED PURSUANT TO 'JPREME COURT RULE 24(5)

® JERT L. SHEVIN

i TORNEY GENERAL

CHARLES CORCES, JR.

Assistant Attorney General

412 E. Madison St., Ste. 800

Tampa, Florida 33602

Counsel for Petitioners

TOPICAL INDEX TO BRIEF

PAGE

PRELIMINARY STATEMENT 1

ARGUMENT 1-6

CERTIFICATE OF SERVICE 7

ep ee a

tt

TABLE OF CASES

PAGE

Hoffman v. Jones, 280 So.2d 431 3

(Fla. 1973)

Morrissey v. Brewer, 408 U.S. 471 3

(1972)

Natural Milk Producers Association 6

of California v. City and

County of San Francisco,

317 U.S. 423 (1943)

Nebraska Press Association v. 3-4

- Hugh Stuart, 427 U.S. 539

(1976)

O'Conner v. Donaldson, 422 U.S. 4

563 (1975)

Regan, Chairman of the New York 4-5

Board of Parole v. Johnson,

419 U.S. 1015 (1974)

Searpa v. United States Board of 5

Parole, 419 U.S. 809 (1973)

Scott v. Kentucky Board of Parole, 4

429 U.S. 60 (1976) n.1

Sibron v. New York, 392 U.S. 40 2

(1968)

United States v. Munsingwear, Inc., 6

340 U.S. 36 (1950

ttt

Walker v. City of ts i elit

(388 U. . 307 (1967)

Weinstein v. Bradford, 423 U.S.

147 (1975)

4

PRELIMINARY STATEMENT

Petitioners file this supplemental

brief pursuant to Supreme Court Rule

24(5) for the purpose of replying to

the suggestion made by respondent in

his brief that this cause is moot. In

doing so petitioners concede that respon-

dent's sentence expired on December l,

1977.

ARGUMENT

While respondent may argue that this

cause is moot as to him, it is not moot

as to these petitioners. Petitioners

continue to have a personal stake in the

outcome of this controversy because

they will suffer residual and adverse

legal consequences by virtue of a judg-

ment rendered by the Supreme Court of

Florida which is predicated on an

-2-

erroneous interpretation of federal law.

In Sibron v. New York, 392 U.S. 40 (1968),

the Court held that even though a sentence

had expired a case was not moot where

there was no way for the defendant to

have brought the case before the Court

prior to expiration of the sentence and

there was a "possibility" that as a

result of the judgment the defendant

would suffer adverse collateral legal

consequences.

Petitioners recognize that in Sibron

it was a criminal defendant seeking

review in this Court, whereas here it

is a parole commission and a warden.

To view a parole commission and a warden

as having less standing than a state

prisoner is to create an invidious

distinction without a difference.

Petitioners could not have brought this

=3-

case to this Court before expiration of

the sentence, and they will suffer

repeated residual and collateral legal

consequences as a result of the judgment.

What legal consequences? Petition-

ers are bound by the decisions of the

Supreme Court of Florida however erroneous

they may be. Compare: dHoffman v. Jones,

280 So.2d 431 (Fla. 1973); Walker v. City

of Birmingham, 388 U.S. 307 (1967). As

a result the commission must, unnecessarily,

provide the full panoply of Morrissey v.

Brewer, 408 U.S. 471-(1972), procedural

rights to all future revocations of

unexecuted grants of parole and petition-

ers will, in each instance, be forced to

sacrifice their right to vindicate their

claim, because the issue will repeat

itself time and again yet evade review,

Nebraska Press Association v. Hugh Stuart,

_

427 U.S. 539 (1976). The challenged

action will be too short in duration to

be fully litigated and petitioners, the

complaining parties in this cause, will

be subjected time and again to the same

action, Weinstein v. Bradford, 423 U.S.

147 (1975). If denied review petitioners

must comply or run the risk of having

sanctions imposed by the F orida Supreme

Court or even be subject to civil

damage suits. Compare: 0O’Conner v.

Donaldson, 422 U.S. 563 (1975).

Weinstein v. Bradford, 423 U.S.

147 (1975); Seott v. Kentucky Board of

Parole, 429 U.S. 60 (1976); Regan,

1 “As disposition in each of the last

three years demonstrate, the under-

lying issue is one that is capable

of repetition, yet review is re-

peatedly evaded." Scott v. Kentucky

Board of Parole, 429 U.S. 60, 63,64

- Stevens, J. dissenting.

NS ee

-5-

Chairman of the New York Board of Parole

v. Johnson, 419 U.S. 1015 (1974); Searpa

v. United States Board of Parole, 414 U.S.

809 (1973), are distinguishable. In

each, when the cause was declared moot,

the parties were left in their original

position. Each involved an initial

proceeding in federal court. In each,

either the Court or a circuit court of

appeals had the power to order the dis-

trict court to consider the cause as

mooted thus leaving the parties in their

original position.

But, in the instant case, unless

the Court grants certiorari, the judgment

of the Supreme Court of Florida will

stand, much to the detriment of peti-

tioners.

pullive

Nevertheless, should this Court

determine this cause be moot it is re-

quested that the Court grant the writ

and vacate or reverse the judgment in

order that the judgment of the Supreme

Court of Florida not be res judicata

in future litigation, United States v.

Munsingwear, Inc., 340 U.S. 36 (1950);

Natural Milk Producers Association of

Calivornia v. City and County of San

Francisco, 317 U.S. 423 (1943).

Respectfully submitted,

ROBERT L. SHEVIN

ATTORNEY GENERAL

CHARLES CORCES, JR.

e Assistant Attorney General

412 East Madison Street

Suite 800

Tampa, Florida 33602

Counsel for Petitioners

~ s

CERTIFICATE OF SERVICE

I, CHARLES CORCES, JR., Counsel for

Petitioners, and a member of the Bar of

the Supreme Court of the United States,

hereby certify that on the day

of , 1978, I served three copies of

the Supplemental Brief of Petitioners on

Philip J. Padovano, Esquire, Counsel for

Respondent, 2950 First Avenue North,

P. O. Box 12787, St. Petersburg, Florida

33733, by a duly addressed envelope with

postage prepaid.

CHARLES CORCES, JR.

Assistant Attorney General

Of Counsel for Petitioners