Reply Brief — Arizona v. Manypenny

ee)

FILED

CT @ BO

ICHAEL RODAK, JR.. CLE

Smo us | |

No. 79-621 \

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF ARIZONA, PETITIONER

ve

WILLIAM DALE MANYPENNY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

REPLY BRIEF FOR THE STATE OF ARIZONA

STEPHEN D. NEELY

PIMA COUNTY ATTORNEY

DANIEL JESSE SMITH

Chief Deputy Appellate Division

Pima County Attorney

900 Pima County Courts Building

111 West Congress Street

Tucson, Arizona 85701

(602) 792-8411 Office

(602)622-7161 Home

Attorney for Petitioner

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No. 79-621

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF ARIZONA; rcETITIONER

Vv.

WILLIAM DALE MANYPENNY

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

REPLY BRIEF FOR THE STATE OF ARIZONA

STEPHEN D. NEELY

PIMA COUNTY ATTORNEY

DANIEL JESSE SMITH

Chief Deputy Appellate Division

Pima County Attorney

900 Pima County Courts Building

111 West Congress Street

Tucson, Arizona 85701

(602) 792-8411 Office

(602)622-7161 Home

Attorney for Petitioner

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TABLE OF CONTENTS

meee Of AUChHOFTLties. « «6 ect ew ee

Reply Argument I. . « « « «© © «© © « e«

THE TENTH AMENDMENT PROVIDES

A JURISDICTIONAL BASIS FOR

CE ici) td Viva oh Pee a ele

Reply Argument IIT . .. +. o's © « « e

"COMMON LAW" PRINCIPLES FAVOR

PETITIONER'S APPEAL ......

Reply Argument TIT... 6 « «© ¢ «© s « e

ARIZONA LAW PROVIDES FOR

APPELLATE REVIEW OF THE TRIAL

COURT'S ORDER IN THE INSTANT

CASE ad so e . ° 7 ° ° 7. o a - + ° o

Conclus ion ° ° 7 ° ° e ° ° o . e e . .

Append i x I e * e . . e ° - o - * * ° a

Letter From Attorney General of

California (dated June 9, 19380)

authorizing Petitioner to

represent to the Court that the

State of California supports

Petitioner as to the first issue

Re CESS COURS oie eee 8) ae

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es.

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ms

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TABLE OF AUTHORITIES

Cases

Bartkus v. Illinois,

Pn es Cee eee Ge ee wipe

Bushell's Case,

Vaughan 135, Eng.Rep. 1006... .

Collins Vv. United Mine Workers

of America Welfare and Retirement

Fund o

298 F. Supp. 964. °« © «© ee e@# #@© @e@ @# @

Colorado v. Symes,

ON Ma EEE fig? ooo ele ee ee

Davis v. Passman,

442 UsSe 2298 ° . e e ° ° e Ld ° . e

Elias v. Pasmore,

2 K.B. 164 oc o a . . = . ° - - 7. ©

Elrod v. Burns,

427 U.S. 347 (dissenting opinion

of Chief Justice Burger) .....

Florida Trailer and Equipment

company v. Deal,

v's - 2 = J . . * se . - ”

Funk v. United States,

290 U.S. 371 . e e ° ° e ° ° e e

Glidden Co. v. Zdanok, 370 u.s. 530,

(dissenting opinion of Justices

DOUGASS Ond. BLACK)... 2 2 ce 2 e's

Miller v. Monsen,

~ 37 N.W.2d 543 (Supreme Court of

MIUOEROCRS 2. oS RM eee eo eels

ii

11

10

8, ll

Cases

O'Donoghue v. United States,

299 U.S. 516 ° o J ° 2 ° 2 s o . *- _

Richmond Newspapers, Inc. v. Virginia,

U.S. 7 100 S.Ct. 2814 . ” «

State v. Fayle,

114 Ariz. 219, 560 P.2d 403. ....

State v. Gradillas,

25 Ariz.App. 510, 544 P.2d 1111...

State v. Lopez,

26 Ariz.App. 559, 550 P.2d 113...

Tennessee v. Davis,

100 U.S. 257 ° s e e > ° ° e e ° e e

United States v. Schoenfield,

465 F.2d 560, cert.denied 93

S.Ct. 210. e ° ° a. . o * = = oO . . ‘e

Wolf v. Colorado,

338 U.S. 25. e ° . ° od ° e s e * e .

UNITED STATES CONSTITUTION

AVtiGie .2, Section Tiki... 6.6 6 je 6: 6

article II, Section I (superseded

by the Twelfth Amendment). ......

Article III. * e . e © 2 . | - e . a ° e

> eae ae EN Tg ke ee 8 we ele le

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10

——

Batt PUOOORE 6 be eke ee 6 be

Bagnth Amendment. . « 1 0 « «6 « «6

Tenth Amendment .. ..-.+ se es ees

Twelfth Amendment .........-

UNITED STATES STATUTES

18 DUS .Ce 3731. . * ° ° * a ° ° ca e °

ARIZONA RULES

Rule I of the Rules of Procedure For

Special Actions (found in Volume

17A of Arizona Revised Statutes). ..

MISCELLANEOUS’ :

Articles of Confederation ......

The Bible Proverbs § 24, Line 24...

wee DRLA COR RAGES s 2h. he ee

The Declaration of Independence...

The Federalist, edited by Jacob E.

-passim

Cooke, Wesleyan University Press(1961l).

The Federalist, No. 17 (Hamilton) ..

The Federalist, No. 31 (Hamilton) ..

The Federalist, No. 32 (Hamilton) . .

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iv

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15

The Federalist, No. 39 (Madison) ..

The Federalist, No. 45 (Madison) ..

The Federalist, No. 78 (Hamilton). .

The Federalist, No. 79 (Hamilton). .

The Federalist, No. 84 (Hamilton). .

Brant, The Bill of Rights, Its

Origins and Meanings, Bobbs, Merrill

and Company (1 tg Se ee ea

Morison, The Oxford History of the

American People, Mentor Edition

1972, Volume 1, pages 399-400. ...

Schwartz, The Bill of Rights; A

Documentary History, Chelsea House

Publishers (1971). ee a eee

Shakespeare, Measure for measure

Act II, Scene II, lines 175-176. e

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I.

THE TENTH AMENDMENT PROVIDES

A JURISDICTIONAL BASIS FOR THIS

APPEAL

Respondent on pages 45 through 50 of his

brief argues that the Tenth Amendment has no

application to this case. Respondent does not

explain why this Court cannot imply a remedy

under the Tenth Amendment, as it has implied

remedi-_.snder the Fourth, Fifth (Davis v.

Passman, 442 U.S. 228 (1979) at 241, 242) and

Eighth Amendments. Respondent apparentiy con-

tends that the absence of explicit language in

the Tenth Amendment authorizing such an appeal

by a state precludes the use of the Tenth

Amendment as the jurisdictional basis of an

implied remedy. Respondent's niggardly reading

of the Bill of Rights was most recently rejected

by the Court in Chief Justice Burger's opinion

in the Richmond Newspapers Inc. v. Virginia

case U.S. 100 S.Ct. 2814 (1980) at

2828-2829.

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", . eThe concerns expressed

by Madison and others have thus

been resolved; fundamental rights,

even though not expressly guaranteed

have been recognized by the Court

as indispensable to the enjoyment

of rights explicitly defined."

100 S.Ct. at 2829.

While there has been relatively little

litigation involving the Tenth Amendment, an

examination of Constitutional history shows

that the Founding Fathers considered the

reserved powers doctrine of vital importance

to our Constitutional scheme.

Under the Articles of Confederation, the

“reserved powers" of the States were seen to

embody the whole subject of individual rights.

This was made explicit by Article II of the

Articles, which provided "Each State retains.

every power, jurisdiction, and right which is

not by this confederation expressly delegated

to the United States." This was the

~~

direct precursor of the Tenth Amendment, and

was seen as the main bulwark against centralized

despotism. 1

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1. Even when the government system under

the Articles began to prove untenable, and a

stronger federalism was urged, the reserved

powers doctrine retained its pivotal position

on the issues of individual freedom and

state sovereignty. It was the reserved powers

doctrine which proved to be the much needed

common ground in the struggle over the

Constitution; nearly every anti-federalist

_ writer attacked the absence of a Bill of Rights,

specifically rejecting the federalist premise

that what rights were not given to the federal

government were impliedly reserved to the States.

Anti-federalist rejection of this premise

lead directly to the adoption of the Tenth

Amendment, closely parallelling the old

Article II, and soothing anti-federalist fears.

The importance of the reserved powers doctrine

to the Founding Fathers is underscored by its

treatment by the states. The doctrine was the

first of the Twelve Amendments to the Consti-

tution proposed by Massachusetts, the first

State to officially propose amendments. It

was the first amendnent submitted to the

Maryland ratifying convention. It was the

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Repeated references to State Sovereignty

in the Federalist Papers ineluctably lead to

the conclusion that the view of State sovereignty

held by the majority in the Ninth Circuit, that

the States possess only those rights that

Congress deigns to give them, (Pet.App. at lla)

is completely Repuee Tot to the conception of

State sovereignty and Federalism held by the

Founding Fathers. (All the following quotations

are from The Federalist edited by Jacob E.

Cooke, Wesleyan University Press, Connecticut

1961.)

"The State governments by their

original constitutions, are

invested with complete sovereignty."

Federalist No. 31, (Hamilton)

pg. 197-198.

first of the proposed Virginia Amendments.

Indeed, every one of the eight States which

proposed, either officially or unofficially,

amendments to the Constitution, recommended

a provision like that ultimately included in

the Tenth Amendment, reserving to the States

powers not specifically delegated to the Federal

Government. See, The Bill of Rights: a

Documentary History, by Bernar chwartz, Chelsea

House Publishers, 1971 at 384-5, 505, 674-766, 983.

4

", . .the State Governments would

clearly retain all the rights of

sovereignty which they before had

and which were not by that act

exclusively delegated to the

United States." The Federalist

No. 32 (Hamilton), pg. 200.

"There is one transcendent advan-

tage belonging to the province of

the State governments which alone

suffices to place the matter in

a clear and satisfactory light.

I mean the ordinary administra-

tion of criminal and civil justice.

This of all others is the most

powerful, most universal and most

attractive source of popular

obedience and Acero mye The

Federalist No. 17 (Hamilton),

pg. 105.

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", . »Here, in strictness, the

people surrender nothing, and as

they retain every thing, they have

no need of particular reserva-

tions." The Federalist No. 84

(Hamilton), pg. 578. See also,

The Federalist Nos. 39 and 45

(Madison) .

*y

Petitioner subniits, especially in light

of the history of colonial hatred for Great

Britian's "removai bill" (please see pages

44-47 and 95-96 of Petitioner's opening brief) |

s%

er 2. Le

that the majority opinion in the Ninth Circuit

in this case would certainly be viewed as

antithetical to the Constitution by those

who drafted it.

As discussed on pages 37-48 of Petitioner's

opening brief, Congress did not intend to pre-

clude appeals by States in removal prosecutions

when it enacted 18 U.S.C. 3731. It is

Petitioner's position that even if Congress

had included a specific subsection explicitly

prohibiting the States from using 18 U.S.C.

3731 for appeals in removal cases, such a

restriction would be an unconstitutional

nullity because of the Tenth Amendment.

If the Court is tc “arrest the downgrading

of States to a role comparable to the depart-

ments of France, governed entirely out of the

national capital." ‘(Chief Justice Burger

dissenting in Elrod v. Burns, 427 U.S. 347

(1976), at 375 the majority ruling must be

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reversed.2 See also, opinion of Justice

Frankfurter in Bartkus v. Illinois, 359 U.S.

2h (1959) a€. 137.

2. That the 50 States are to be treated

as sovereign political entities is best

illustrated by Article II, Section I

(superseded by the XII Amendment). It provides

that if no presidential candidate wins an

outright majority of the electoral votes cast,

the House of Representatives shall choose the

president, with each of the 50 States vo

have one vote, irrespective of population.

At the time Article II, Section I was adopted,

the "two party system" was unforseen and it

was assumed that most presidential elections

would be decided in the House. See, Morison,

The Oxford History of the American People,

Mentor edition 1972, Volume I, pages 399-400.

C.F. Article I, Section III.

Il.

"COMMON LAW" PRINCIPLES FAVOR

PETITIONER'S APPEAL.

On pages 32 et seq. of his brief,

Respondent contends that because English

"common law" did not look favorably on

appeals by the sovereign in criminal cases,

the Ninth Circuit had no jurisdiction to

consider the appeal by the instant Petitioner.

Respondent misconstrues the nature of tae

"common law". The "common law" is not graven

in stone like the Ten Commandments, it is

flexible and has a capacity for growth and

change. See, Funk v. United States, 290 U.S.

371 (1933) at 383. The Minnesota Supreme

Court wrote in Miller v. Monsen, 37 N.W.2d

543 (1949):

"Novelty of an asserted right

and lack of common-law

precedent terefor are no reasons

for denying its existence. The

common law does not consist of

absolute, fixed and inflexible

rules, .but rather of broad and

m3

aie “48

}

comprehensive principles based

on justice, reason, and common

sense. It is of judicial origin

and promulgation." at page 547.

See also, Florida Trailer and Equipment Company

v. Deal, 284 F.2d 567 (5th Circuit, 1960);

Collins v. United Mine Workers of America

Welfare and Retirement Fund of 1950, 298 F.Supp.

964 (United States District Court for District

of Columbia, 1969, affirmed 439 F.2d 494)

(quoting Justice Cardozo).

It is immaterial that the instant case is

a criminal case rather than a civil case:

“More significantly, common law

doctrines are not frozen for

criminal cases any more than

civil cases." United States v.

Schoenfield, 465 F.20 560 at

561 cert.denied, 93 S.Ct. 210

(D.C. Cir. 1972).

Moreover, as noted in Petitioner's opening

brief at pages 53-54, 47 of the 50 States allow

for appeals by the government in criminal

cases, so the "common law" doctrine disfavoring

appeals by the sovereign on which Respondent

relies clearly has no continuing vitality in

the United States. 3

3. Respondent's contention that the appellate

rights of the State of Arizona in a removal

prosecution should be governed by the appellate

rights of the English sovereign at common

law is even more questionable when one con-

Siders the differences in our respective

legal systems. English judges did not enjoy

the Article III protections that guarantee

the independence of our federal judges.

Indeed, another enumerated grievance in the

Declaration of Independence was: “He has

made Judges dependent on his will alone, for

the tenure of their offices, and the amount

and payment of their salaries." This portion

of the Declaration of Independence, as well as

Hamilton's Federalist No. and 79, was

quoted by the Court when it discussed the

importance of the Article III guarantees

in maintaining an independent judiciary in

O'Donoghue v. United States, 289 U.S. 516

(1933) at 530-533. See also dissenting

opinion of Justices Douglas and Black in

Glidden Company v. Zdanok, 370 U.S. 530 (1962)

at 594-596, quoting Federalist No. 79. In

addition to the English sovereign having more

influence over the English judiciary, prior

to the decision in Bushell's Case in 1670,

(Vaughan 135, 124 Eng.Rep. 1006), it was a

common practice under Tudor.and Stuart monarchs

10

Petitioner asserts that if this case

is to be decided on "common law" principles,

than “justice, reason and common sense"

(Miller v. Monson, supra) dictate that the

Court not divest the States of their right to

appeal in a removal prosecution. Allowing for

an appeal by the States in removal cases would

be consistent with the principles set forth by

the Court in Tennessee v. Davis, 100 U.S. 257

(1880) and Colorado v. Symes, 286 U.S. 510

(1932). (Both discussed in Petitioner's

opening brief). Further support for Petitioner's

position is found in the Court's recent decision

in Richmond Newspapers, Inc. v. Virginia,

supra. Petitioner submits that all

to lock up jurors who refused to return a

verdict of guilty. See The Bill of Rights,

Its Origins and Meanings, by Irving Brant,

Bobbs, Merrill & Company, 1965, pg. 61. More-

over, the "exclusionary rule" which forms tke

basis for a great many government appeals

by the Federal Government and various State

11

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of the public policy considerations* enumerated

by Chief Justice Burger at 100 S.Ct. 2824-26

and Justices Brennan and Marshall in their

concurring opinion at 100 S.Ct. 2837-8 that

militate in favor of opening the justice system

to public scrutiny are equally applicable to

the issue of whether a federal district judge

should be vested with the unreviewable power to

in essence “pardon" any federal official charged

with a violation of a State criminal statute.

Petitioner submits that it is hard to

think up a rule of law more calculated to

subvert the social values wnumerated by the

governments, did not and does not exist in

England. See, Wolf v. Colorado, 338 U.S. 25

(1949) Appendix Table J at 39, citing Elias ‘+.

Pasmore (1934) 2K.B. 164.

4. "“. . .To work effectively, it is important

that society's criminal process ‘satisfy the

appearance of justice.'" 100 S.Ct. at 2825.

* * *

12

Court in support of the Richmond decision,

than the rule of special privilege established

by the majority in the Ninth Circuit.

Open trials assure the public that procedural

rights are respected, and that justice is

afforded equally. Closed trials breed

suspicion of prejudice and arbitrariness,

which in turn spawns disrespect for law.

100 S.Ct. at 2837. See also, Shakespeare's,

Measure for Measure, Act II, Scene II,

SOliloquy of Angelo the Magistwate at lines

175-176; Proverbs, § 24, line 24.

13

itt.

ARIZONA LAW PROVIDES FOR APPELLATE

REVIEW OF THE TRIAL COURT'S ORDER

IN THE INSTANT CASE.

On pages 17 through 20 of his brief,

Respondent contends that had Respondent not

exercised his right of removal, the State of

Arizona could not have sought appellate review

of a similar ruling by an Arizona trial judce.

Respondent omits any discussion of the case

cited by Petitioner in its opening brief,

(footnote 2 at pg. 34) and cases cited by

Judge Kennedy in his dissent. (Pet.App. 23a,

38a). In those cases, Arizona appellate courts

have granted appellate relief via Petition For

Special Action when a trial court has improperly

entered a judgment of acquittal. See also,

State v. Gradillas, 25 Ariz.App. 510, 544 P.2d

1111 (1976) where the State successfully appealed

from the granting of both a motion to suppress

evidence and a judgment of acquittal.

14

The Arizona Court of Appeats opinion

in State v. Lopez, 26 Ariz.App. 559, 550 P.2d

113 (1976) (majority opinion specifically

approved by the Arizona Supreme Court in

State v. Fayle, 114 Ariz. 219, 560 P.2d 403

(1976)) on which Respondent relies, specifically

rejects Respondent's position.

"This case, as well as State ex

rel Berger v. Superior Court, 111

Ariz. 335, 529 P.2d 686 (1974)

indicates that review of an order

such as that involved here is

available to the State by special

action, and, in fact, the non-

appealability of the order and the

availability of special action pro-

ceedings may result in much speedier

review of such an order than by

means of appeal." 550 P.2d at 115.

Rule 1 of the Rules of Procedure For

Special Actions provides that “the special

action shall not be available where there is an

Senda liy plain, speedy, and adequate rer-2y by

appeal;" (found in Volume 17A, Arizona Revised

Statutes, pg. 227-8). That Arizona

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denominates appellate review of certain types

of orders "appeals" and denominates review of

~ other trial orders "special actions" does not

change the reality that in Arizona the trial

court's rulings are subject to review by the

Arizona appellate courts at the behest of the

State.

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CONCLUSION

For the reasons set forth in this

brief and Petitioner's opening brief, the

Court should reinstate the jury's guilty

verdict and remand the instant case to the

ey aD atthe ie

Federal District Court for sentencing.

Respectfully submitted this Vind day

of October, 1980.

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STEPHEN D. NEELY

PIMA COUNTY ATTORNEY

9

_ i x. ‘!

Danie sse Smith

Chief Deputy County

Attorney, Appellate

Division

Pima County Attorney

900 Pima County Teer ce

Building

111 West Congress Street

Tucson, Arizona 85701

(602) 792-8411 Office

(602) 622-7161 Home

Attorney for Petitioner

ERE AST Pe ES

Ld

F POMS et

0

George

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APPENDIX 3580 WILSHIRE ALvO

r*) ornia LOS ANGELES 90010

4203) 736 23064

Bepartnent of Justice

Beukmejian

(Pronounced DUKE-may-Gim)

Attorney General

June

- Honorable Stephen Db. Neely

Pima County Attorney

_ 900 Pima County Courts Building

111 West Congress Street

Tucson, Arizona 85701

Attention: D. Jessie Smith

Deputy County Attorney

9, 1980

Re: State of Arizona v. Manypenny

UsSi8.C, No. 7S$-621

. Dear Sir:

You are autho”azed

to represent to the United

8 States Supreme Court that the State of California Supports

the position of the State of

presented on the Petition in

Sik state is not deprived of

28 U.S.C., section 1442(

in Arizona's request that th

- Appeals for the Ninth Circult

is removed by a defendant to

a) (1

peversed.

A copy of this let

ko the Hlonorable Michael Roa

- Suprene Court.

Sin

Geo

By

TEA SCS Sete a ee ee ee ae

Arizona on Question I,

the above entitled case, that

appellate rights that erist

under federal and state law when a state criminal prosecution

4

ar

a federal court pursuant to

), and that California joins

e judgment of the Court of

t, holding, to the contrary, oe

ter has this date been forwarded

ak, Clerk of the United States

cerely yours,

C DeukmeJjian, on General

oo Lyfllae’ geo u-¢

Aitiiiam E. Ja

Sr. “assistant Attorney General

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