# Reply Brief — Keyhea v. Enomoto

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1974%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1980
- **Citation:** 447 U.S. 901

## Text

“ @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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1974%3A3. Public record. Not legal advice.