Reply Brief — Keyhea v. Enomoto

“ @preme Court, U. &

FILED

JUN 2 i980

No. 79-1597 -

In the Supreme Court of the

United States

RODAK, JR CCERW |

October Term, 1979

CANAL KEYHEA,

Appellant,

VS.

J. J. ENOMOTO, Director of the Department

of Corrections for the State of California,

et al.

Appellees.

APPELLANTS REPLY TO MOTION

TO DISMISS OR AFFIRM

On Appeal from the Court of Appeal for the State of California,

First Appellate District

PETER E. SHEEHAN

STEFAN M. ROSENZWEIG

CLIFFORD C. SWEET

LEGAL AID SOCIETY OF ALAMEDA COUNTY

2357 San Pablo Avenue

Oakland, California 94612

‘Telephone: (415) 465-4376

Attorneys for Appellant

INTER.CITY PRINTING COMPANY. OAKLAND CALIFORNIA 94607

_ SUBJECT INDEX |

Page

pefieedt i saaohy ve A tion of Vitek Is Not Pre-

Because Vitek Did Not sh aca as cep

Web of the Law 2

Il. If the tion Is Presented, Vitek Should Be Given Full Retro-

active ect

TABLE OF AUTHORITIES CITED

Cases

Arnett v. Kennedy, 416 U.S. 134 1974.02. eeecceceee cee 4

Board of Regents v. Roth, 408 U.S. 564 (1972) 2. 4

Carafas v. LaValee, 391 U.S. 234 (1968) oo... ceccccccecceecceeeeeeeeee l

Ches . Adams, 377 nha 887 (D.Conn. 1974),

afd ¢ without opinion, F.2d 836 (2d Cir. 1975)...

4

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) .. 2

Darey v. Sandritter, 355 F.2d 22 (9th Cir. 1965)... pe, 4

Dasho v. Susquehanna Corporation, 461 F.2d 11, 21 (7th Cir.1972) 5

Evans v. Paderick, 443 F.Supp. 583 (E.D.Va. 1977) 4

6

3

4

6

Fitzgerald v. Procunier, 393 F.Supp. 335, 339 (N.D.Cal. 1975)........

Hanover Shoe v. United Shoe Mach. Corp., 392 U.S. 481 (1968)...

Harmon v. McNutt, 587 P.2d 537 (Wash. Supreme Ct. 1978)............

Liles v. Ward, 424 F.Supp. 675, 678 (S.D.N.Y. 1976)

Matthews v. Hardy, 420 F.2d 607 (D.C.Cir. 1969),

cert. denied, 397 U.S. 1010 (1970)............. 4,6

Meachum v. Fano, 427 U.S. 215 (1976) BENE SUM AL OL SERS .2, 3,4

Migone v. Vincent, 411 F.Supp. 1386 (S.D.N.Y. 1976)... 4

Morrissey v. Brewer, 408 U.S. 471 (1972) ..022....22.2..-cececcecececeseeceeee .2, 3, 6

Roberts v. Russell, 392 U.S. 293, 295 (1968) oo... eccccecceeeeeeeeeee 5

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

Sites v. McKenzie, 423 F.Supp. 1190 (N.D.W.Va. 1976) _.W.......... 4

Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975) YES teh a 4

United States ex rel Schuster v. Herold, 410 F.2d 1071 Te Cir.

1969), cert. denied, 396 U.S. 847 (1969) Fb SR AER 4

United States ex rel. Souder v. Watson,

413 F.Supp. 711 (M.D. Penn. 1976) -..............-....cccecccccserececeeeteres 4

United States v. Peltier, 422 U.S. 531 (1975) ooo cece eee 2

Vitek v. Jones, .... U.S. ...., 100 S.Ct. 1254 (1980)... 1, et seq.

Watson v. Whyte, 245 S.E.2d 916 (W.Va. 1978) 22... eeecceeeteeee 4

Wolff v. McDonnell, 418 U.S. 539 (1974)... eeeecceccseeeee ..2, 4, 6

ee eee ee ON ek

; ‘

.

TABLE OF AUTHORITIES CITED (Continued) N ¥ 5

-

na No. 79-1597

Page

Alexander, The New Pri: a Administrators and the Court:

New Directions in Prison Law, 56 Tex.L.Rev. 963 (1978)........ 4 preme

“rn bin ys of Prey to seo Institutions, In the Su | Court of the

ournal of Criminal Law and Criminology, 337 (1978)........ 4 U :

nited States

October Term, 1979

| CANAL KEYHEA,

Appellant,

VS.

J. J. ENoMOTO, Director of the Department

of Corrections for the State of California,

et al.,

Appellees.

APPELLANT'S REPLY TO MOTION

TO DISMISS OR AFFIRM :

On Appeal from the Court of Appeal for the State of California,

First Appellate District

oe

| Appellees’ motion to dismiss or affirm neither de-

fends the California Court of Appeal’s holding that

| this action was moot nor explains that court’s sub

silentio rejection of the well established principles set

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

and Carafas v. LaVallee, 391 U.S. 234 (1968). Rather,

appellees’ principal argument is that appellant is not

entitled to either declaratory relief or relief in the form

of expungement because the decision in Vitek v. Jones,

.... U.S. ...., 100 St. Ct. 1254 (1980) should be given

solely prospective application (Motion to Dismiss or

Affirm 10-11). Appellees are incorrect for two reasons.

First, the question of the “retroactivity” of the Vitek

decision is not even presented because Vitek did not

represent a sharp departure from prior law. Second,

even assuming that the retroactivity question was pre-

sented, Vitek is fully retroactive.

THE QUESTION OF PROSPECTIVE APPLICATION OF VITEK

IS NOT PRESENTED BECAUSE VITEK DID NOT CONSTITUTE

A SHARP BREAK IN THE WEB OF THE LAW.

The question of prospective application of a deci-

sion of this Court is not even presented unless the

decision establishes “‘a new principle of law, either by

overruling clear past precedent on which litigants may

have relied or by deciding an issue of first impression

whose resolution was not clearly foreshadowed.” Chev-

ron Oil Co. v. Huson, 404 U.S. 97, 106 (1971) (cita-

tions deleted). See cases summarized in United States

v. Peltier, 422 U.S. 531, 544, n. 1 (1975) (Brennan, J.,

dissenting). Tested against this standard, the Vitek

decision does not present a question of prospectivity.

Vitek not only failed to overrule existing precedent

but it was clearly foreshadowed, if not preordained,

by previous decisions of this Court. Vitek simply ap-

plied familiar principles of constitutional law estab-

lished in Morrissey, Wolff, and Meachum'—all of which

! Morrissey v. Brewer, 408 U.S. 471 (1972); Wolff v. McDonnell, 418 U.S. 539

(1974) ; Meachum vy. Fano, 427 U.S. 215 (1976).

>. Te Ar an. sb) aA Ps a-tr > ee

were decided more than a year before appellant’s trans-

fer in 1977. In ruling that due process was applicable

to statutes authorizing the transfer of mentally ill

prisoners to mental institutions this Court specifically

noted that it had “repeatedly held that state statutes

may create liberty interests,” relied for its holding

upon existing authority decided from one to five years

prior to appellant Keyhea’s transfer, and described

the lower court’s conclusion as “unexceptional” in light

of this Court’s previous decisions (Vitek, supra, 100

S.Ct. at 1261, 1262). Indeed, given Wolff and Mea-

chum and the fact that prisoners could be transferred

only if they were, inter alia, mentally ill, it was in-

eludible that “the predicate for invoking the protection

of the Fourteenth Amendment as construed and applied

in Wolff’ (Meachum, supra, 427 U.S. at 226-227)

would also be found in Vitek. Morrissey, and perhaps

to a lesser extent Wolff, can be reasonably viewed as

constituting “‘a sharp break in the line of earlier au-

thority [and] an avulsive change which caused the

current of the law thereafter to flow between new

banks.” (Hanover Shoe v. United Shoe Mach. Corp.,

392 U.S. 481, 499 1968.) However, for precisely this

reason Vitek must be seen as simply adhering to the

current previously established by Morrissey and Wolff.

Moreover, not only was Vitek clearly foreshadowed

by decisions of this Court but in addition by a trend

of lower court decisions and commentators. Prior to

Vitek no less than nine courts, including the District

i ee el

* pace ti,

a

4

of Columbia Circuit and Second Circuit, had voided

prison-mental hospital transfer statutes similar to the

statute at issue in Vitek.’ The Third Circuit had

strongly questioned the validity of such statutes and

the commentators had uniformly concluded they were

invalid on the basis of Wolff and Meachum.’ While the

Ninth Circuit in a short per curiam decision in 1965

upheld §2684 against a due process challenge (Darey

v. Sandritter, 355 F.2d 22 (9th Cir. 1965) ), any com-

fort appellees might have received from the conclusory

Darey opinion should have been short-lived. The prem-

ise of Darey—that a prisoner’s involuntary commit-

ment to a mental institution is within the range of

conditions of imprisonment—was rejected by this Court

in several decisions rendered between 1966 and 1972

(see Vitek, supra, 100 S.Ct. at 1264). Moreover, nu-

merous decisions recognizing that statutes could create

interests entitled to due process protections were de-

cided subsequent to Darey. See, e.g., Wolff, supra;

Board of Regents v. Roth, 408 U.S. 564 (1972);

Arnett v. Kennedy, 416 U.S. 184 (1974). These deci-

sions were inconsistent with Darey and clearly demon-

strate that it was unwarranted to rely on Darey as

2 Matthews v. Hardy, 420 F.2d 607 (D.C. Cir. 1969), cert. denied, 397 U.S. 1010

(1970) ; United States ex rel Schuster v. Herold, 410 F.2d 1071 (2d Cir. 1969),

cert. denied, 396 U.S. 847 (1969); Harmon v. McNutt, 587 P.2d 537, 539 (Wash.

Supreme Ct. 1978); Chesney v. Adams, 377 F.Supp. 887 (D.Conn. 1974), aff'd

without opinion, 508 F.2d 836 (2d Cir. 1975); United States ex rel. Souder v.

Watson, 413 F.Supp. 711 (M.D.Penn. 1976); Sites v. McKenzie, 423 F.Supp.

1190 (N.D.W.Va. 1976); Evan v. Paderick, 443 F.Supp. 583 (E.D.Va. 1977);

Migone v. Vincent, 411 F.Supp. 1386 (S.D.N.Y. 1976); Watson v. Whyte, 245

S.E.2d 916 (W.Va. 1978).

3Souder v. McGuire, 516 F.2d 820 (3rd Cir. 1975); Alexander, The New Prison

Administrators and the Court: New Directions in Prison Law, 56 Tex.L.Rev. 963

984-985 (1978); Comment, Transfer of Prisoners to Mental Institutions, 69

Journal of Criminal Law and Criminology 337, 339-344 (1978).

5

a definitive pronouncement that §2684 was constitu-

tionally valid. Compare Roberts v. Russell, 392 U.S.

293, 295 (1968) (reliance on previous decision of this

Court not justified when decision had “been under

attack from its inception and many courts have, in

fact, rejected it.”) Dasho v. Susquehanna Corporation,

461 F.2d 11, 21 (7th Cir. 1972) (Stevens, J.) (resolu-

tion of conflict in circuits does not establish a new

principle of law.)

it.

IF THE QUESTION IS PRESENTED, VITEK SHOULD BE GIVEN

FULL RETROACTIVE EFFECT.

Even on the erroneous premise that the retro-

activity of Vitek is here involved, appellees are in-

correct in asserting that it must be given prospective

effect only. First, the major purpose of the constitu-

tional protections reaffirmed in Vitek would be fur-

thered by retroactivity because those safeguards were

designed to protect against what this Court described

as “the inherent risk of a mistaken transfer” to a

mental institution, especially given “the subtleties and

nuances of psychiatric diagnoses.” Vitek, supra, 100

S.Ct. at 1265. Indeed, Justice Powell in his concurring

opinion specifically noted that “[i]t is unlikely that

an inmate threatened with involuntary transfer to

mental hospitals will possess the competence or train-

ing to protect adequately his own interest in these

state-initiated proceedings.” Vitek, supra, 100 S.Ct.

at 1266 (Powell, J., concurring.)

Second, the burden resulting from holding Vitek

retroactive is significantly less than that identified

in Wolff or Morrissey. Wolff involved 19,000 and Mor-

rissey 1,100 hearings per year on the federal level

alone, while the California Department of Corrections

estimated that 3,000 disciplinary hearings were held

in a two-month period.‘ In contrast, appellants’ mo-

tion estimates that 20 prisoners are transferred to

mental institutions in a two-month period (Motion

to Dismiss or Affirm, p. 11). And any “burden” im-

posed by retroactivity would be limited to those states

which have continued to summarily commit prisoners

despite holdings of numerous courts to the contrary

(see n. 2, supra).

Finally, it would be exceedingly harsh and inequit-

able to limit Vitek to prospective application. Such a

limitation would effectively foreclose the ability of

prisoners who have been summarily committed “to

live in the grievously distressing atmosphere of an

institution ... which houses the insane” (Liles v. Ward,

424 F.Supp. 675, 678 (S.D.N.Y. 1976) ) to contest their

commitment despite “the obvious but terrifying possi-

bility that the transferred prisoner may not be men-

tally ill at all.” (Matthews v. Hardy, 420 F.2d 607,

610 (D.C. Cir. 1969), cert. denied, 397 U.S. 1010

(1970).)

‘Fitzgerald v. Procunier, 393 F Supp. 335, 339, n. 1 (N.D.Cal. 1975).

SO gM ORR CREE ee Sey eS Rt ors SE Gita Se iets hei tr pa

io isis : ; . . "a

For the reasons discussed above, the judgment of

the Court of Appeal of California should be reversed

by this Court.

Dated: May 22, 1980.

Respectfully submitted,

PETER E. SHEEHAN

STEFAN M. ROSENZWEIG

CLIFFORD SWEET

LEGAL AID SOCIETY OF ALAMEDA COUNTY

Attorneys for Appellant