Reply Brief — Hewitt v. Helms

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(% FILED 5

No. 85-1630 MAY 14 1D

IN THE SUPREME COURT jJSSEBH F. SPANIOL, JR,

UNITED STATES CLERK

1985

October Tern,

LOWELL D. HEWITT, Supt.;

B. B. KYLER, CO III;

R. E. STOTELMYER, Major;

B. K. SMITH, Counselor III;

K. R. HILEMAN, Farm Manager;

D. R. ERHARD, Deputy Supt.

for Treatment;

T. W. HENRY, Director of

Treatment;

W. MATEER, C. I., Manager

Petitioners

Vv.

AARON HELMS,

Respondent

REPLY TO RESPONDENT'S MEMORANDUM

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

LeROY S. ZIMMERMAN

Attorney General

ALLEN C. WARSHAW ANDREW S. GORDON

Executive Deputy Chief Deputy

Attorney General Attorney General

Director, Chief, Litigation

Commonwealth Section

Agencies Legal

Services Division

FRANCIS R. FILIPI GREGORY R. NEUHAUSER

Senior Deputy Senior Deputy

Attorney General Attorney General

Counsel of Record

Attorneys for Petitioners

Office of Attorney General

15th Fl., Strawberry Square Ne

Harrisburg, PA 17120 XK \\

(717) 783-1471

TABLE OF CONTENTS

TABLE OF AUTHORITIES... .2ceeeees

ARGUMENT

RESPONDENT CANNOT BE

REGARDED AS A PREVAILING

PARTY BECAUSE HE HAD

NO STANDING TO REQUEST

EQUITABLE RELIEF.......

CONCLUSION. wc cccsccccces coccccece

PAGE

ii

TABLE OF AUTHORITIES

CASES PAGE(S)

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) ..cccccces 3,4,5

O'Shea v. Littleton, 414 U.S.

GES UEP se scccesouseseuese +

Rizzo v. Goode, 423 U.S.

SOS CLO TO Po bb ccctcsetédivieds 3

STATUTE

Civil Rights Attorneys Fees

Awards Act, 42 U.S.C.

wAta

IN THE SUPREME COURT OF

THE UNITED STATES

October Term, 1985

No. 85-1630

LOWELL D. HEWITT, et al.,

Petitioners

Vv.

AARON HELMS,

Respondent

REPLY TO RESPONDENT'S MEMORANDUM

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ARGUMENT

RESPONDENT CANNOT BE

REGARDED AS A PREVAILING

PARTY BECAUSE HE HAD NO

STANDING TO REQUEST

EQUITABLE RELIEF.

In opposition to the petition

for writ of certiorari, respondent Helms

makes several contentions most of which

have been addressed by petitioners in

the petition. One argument, however,

necessitates a reply.

Helms takes issue with peti-

tioners' argument on mootness and

standing. He places great weight on the

proposition that, under state law, a

parolee continues to be under the legal

authority of the state corrections

officials even after release from

incarceration. From this premise, he

argues that he possessed the requisite

standing to seek | declaratory and

injunctive relief even after his

parole, To the extent that this

—)-

position reflects a correct statement of

Pennsylvania law insofar as applicable

to the state's authority to revoke

parole, it nevertheless ignores impor-

tant factual circumstances in this case.

There simply was no live case

or controversy between Helms and peti-

tioners, with the exception of his claim

for damages for past violations, by the

time of the first appeal to the Court of

Appeals. He lacked standing at that

point to request, much less recover,

equitable relief. City of Los Angeles

v. Lyons, 461 U.S. 95 (1983); Rizzo v.

Goode, 423 U.S. 362 (1976). In Lyons,

the Court reiterated that past exposure

to illegal conduct does not, in and of

itself, present a live case or contro-

versy regarding injunctive relief "se

unaccompanied by any continuing, present

~ ie

adverse effects." Lyons, 461 U.S. at

102, citing O'Shea v. Littleton, 414

U.S. 488, 495-96 (1974). Just as in

Lyons and O'Shea, the prospect that

respondent here would be subjected to

the same real and immediate threat of

repeated injury was, at best, extremely

remote by the time of his parole. It

had to be “assumed" that Helms would

“conduct [his] activities within the law

and so avoid prosecution and conviction

as well as exposure to the challenged

course of conduct said to be followed by

petitioners," Lyons, 461 U.S. at 103,

quoting O'Shea v. Littleton, 414 U.s. at

497. Simple anticipation that, at some

point, Helms would be re-arrested,

re-convicted and returned to a Pennsyl-

vania prison where he would be cited for

misconduct supported by information from

a confidential informant, is too specu-

lative to support standing. Lyons, 461

U.S. at 103-05.

Without the requisite standing,

it hardly can be argued that Helms was a

prevailing party on 4 claim for egquit-

able or declaratory relief. To be a

prevailing party, he must be able to

contend that his claims for relief other

than damages, for which petitioners were

immune, presented a live case or contro-

versy. For the Court of Appeals to find

prevailing party status, in the absence

of standing to request the prerequisite

underlying relief, is to elevate a claim

of “abstract injury" to Article II!

jurisdiction. Certainly, this is not

what the Congress intended when it

enacted the Civil Rights Attorneys Fees

Awards Act, 42 U.S.C. §1988.

-—S-

CONCLUS ION

For these reasons. and the

reasons expressed in the petition for

writ of certiorari, the petition should

be granted and, upon review, the judg-

ment of the Court of Appeals reversed.

Respectfully submitted,

LeROY S. ZIMMERMAN

Attorney General

ALLEN C, WARSHAW

Executive Deputy Attorney

General Director,

Commonwealth Agencies

Legal Services Division

ANDREW S. GORDON

Chief Deputy Attorney General

Chief, Litigation Section

GREGORY R. NEUHAUSER

Senior Deputy Attorney General

FRANCIS R. FILIPI

Senior Deputy Attorney General

Counsel of Record

Office of Attorney General

ti) ey Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

A) —