Petition for Writ of Certiorari — Bailey v. Noot

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ees nth

Nt itpreme Court of the United States

October Term, 1991

CLARK ALBERT BAILEY,

Petitioner,

Vv.

ARTHUR E. NOOT, ORVILLE PUNG,

CHARLES G. SHEPPARD, LESLIE R. GREEN,

WILLIAM F. McCRAE, BRUCE M. BELTT,

RICHARD A. ALSTAD, JAMES BRUTON,

HENRY GREENCROW, and DOROTHY SKWIERA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

idee Anderson

Counsel of Record

ROBINS, KAPLAN, MILLER & CIRESI

2800 LaSalle Plaza

800 LaSalle Avenue

Minneapolis, Minnesota 55402

(612) 349-8500

Attorney for Petitioner |

RECEIVED

ive! — Kachman Legal Printing, 835 Second Ave. So., Mpls., BN 55402 — (612) 339-95

® FAX 612-337-8053 OFFICE ~~ THE CLERK

SUPREME COURT, U.S. 4

QUESTIONS PRESENTED

1. Does the retroactive application of a state regulation,

having by statute the force and effect of law, which

repeals a previously existing right to be considered

annually for parole such that an affected prisoner no

longer has any opportunity to be considered for parole,

violate the Ex Post Facto Law Clause of the United States

Constitution?

2. Does a person civilly committed to a security hospital

as dangerous possess a constitutional right under the Due

Process Clause of the Fourteenth Amendment to the

United States Constitution to such minimally adequate

treatment as will give the person a reasonable opportunity

to end the commitment?

TABLE OF CONTENTS

Pege

Questions Presented . i

EE iv

Opinions Below 2

Jurisdiction 2

Constitutional Provisions Involved ' 2

Statement Of The Case ; 3

A. Bailey’s Ex Post Facto Law Claim 4

B. Bailey’s Right To Treatment Claim 6

| C. The Lower Courts’ Decisions 7

Argument For Granting The Writ 10

THIS COURT SHOULD GRANT THE

PETITION TO REVIEW BAILEY’S EX POST

FACTO LAW CLAIM 10

. This Claim Raises Important

Issues Of Constitutional Law

Unresolved By This COU .ccccccccccvcvessvesernsvenererernenees 13

. The Eighth Circuit’s Opinion Is

Contrary To The Decisions Of This

Court And Other Circuit COWES ..cccccccccccccceeeveeereeeee 14

. The Eighth Circuit's Reasoning

Effectively Reads The Ex Post

Facto Law Clause Out OF EXi8te@1 CO o.ccccccccccceeeoeo 15

ta, nadia

Il. THIS COURT SHOULD GRANT THE

PETITION TO REVIEW BAILEY’S RIGHT TO

TREATMENT CLAIM 16

A. This Claim Raises An Important

Issue Of Constitutional Law

Unresolved By This Court 17

B. The Eighth Circuit’s Opinion Is

Contrary To The Decisions Of

Other Circuit Courts 18

Conclusion 20

Appendix A-i

TABLE OF AUTHORITIES

Cases Page(s)

Akins v. Snow, 922 F.2d 1558 (11th Cir.),

cert. denied, 111 S. Ct. 2915 (1991) 14,15

Bailey v. Noot, 940 F.2d 1150

(8th Cir. 1991) 2, 8, 9, 13, 15, 16

Bowring v. Goodwin, 551 F.2d 44

(4th Cir. 1977) 18

Breest v. Helgemoe, 579 F.2d 95 (ist Cir.),

cert. denied, 439 U.S. 933 (1978) 15

Durant v. United States, 410 F.2d 689

(1st Cir. 1969) 12

Eckerhart v. Hensely, 475 F. Supp. 908

(W.D. Mo. 1979) 19

Fender v. Thompson, 883 F.2d 303

(4th Cir. 1989) 13, 15

Greenfield v. Scafati, 277 F. Supp. 644

(D. Mass. 1967), aff'd mem.,

390 U.S. 713 (1968) 12

Humphrey v. Cady, 405 U.S. 504 (1972) 17, 18

Inglese v. U.S.P.C., 768 F.2d 932

(7th Cir. 1985) 11

Jackson v. Indiana, 406 U.S. 715 (1972) .. 17

Lindsey v. Washington, 301 U.S. 397 (1937) ............ 10, 12

Miller v. Florida, 482 U.S. 423 (1987) 12

Prater v. U.S.P.C., 802 F.2d 948

(7th Cir. 1986) (en banc) 11, 13, 15

Rifai v. U.S.P.C., 586 F.2d 695 (9th Cir. 1978) ................ 13

Rodriguez v. U.S.P.C., 594 F.2d 170

(7th Cir. 1979) 11, 15

Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966) .......... 18

Shepard v. Taylor, 556 F.2d 648

(2d Cir. 1977) 13, 15

Smith v. U.S.P.C., 875 F.2d 1361

(9th Cir. 1988) .15

State ex rel. Indep. Sch. Dist. No. 6 v. Johnson,

242 Minn. 539, 65 N.W.2d 668 (1954) ......ccccccccccsesees 10

State v. Hopf, 323 N.W.2d 746

(Minn. 1982) ; 10

United States ex rel. Graham v. U.S.P.C.,,

629 F.2d 1040 (5th Cir. 1980) 13, 15

Warden v. Marrero, 417 U.S. 653 (1974) 12,13

Weaver v. Graham, 450 U.S. 24 (1981) 10, 12

Wyatt v. Aderholt, 503 F.2d 1305

(5th Cir. 1974) 19

Youngberg v. Romeo, 457 U.S. 307 (1982) 17

Constitutional Provisions

U.S. Const., Art. I, § 9, clause 3 2,3

Statutes and Regulations

3 Minn. Rules § 2940.1500, subp. 2 5, 11

3 Minn. Rules §§ 2940.0200-2940.0400 5

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1331 and § 1343(a) 3

Minn. Stat. § 14.38, subd. 1 10, 11

Minn. Stat. § 243.05, (1971) (repealed) 4

Minn. Stat. § 243.05, subd. 1 (1989) ..........cccccccssesneerneenees 5, 8

Minn. Stat. § 243.05, subd. 2 (1989) 5, 10

Minn. Stat. § 243.05-243.12 (1971) 4

Minn. Stat. § 253A.15 (1979) 7

Minnesota Corrections Bd.: Adult and Youthful

Offender Parole Policies and Procedures

(July 1977) §§ 7-101.15-16, 7-101.19(a),

7-104.4(b) , stilaaladiaiedchleiaetindtaadtatmiats 4

Other Authorities

Comment, Wyatt v. Stickney and the Right of Civilly,

Committed Mental Patients to Adequate Treatment,

OG Harv. La. Rev. LBBB (GTS) nececceccserescscsccsescesesescscscesese 19

_ a

In the

Supreme Court of the United States

October Term, 1991

CLARK ALBERT BAILEY,

Petitioner,

Vv.

ARTHUR E. NOOT, ORVILLE PUNG,

CHARLES G. SHEPPARD, LESLIE R. GREEN,

WILLIAM F. McCRAE, BRUCE M. BELTT,

RICHARD A. ALSTAD, JAMES BRUTON,

HENRY GREENCROW, and DOROTHY SKWIERA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Clark Albert Bailey (“Bailey”) asks that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion of the United-States Court of Appeals

for the Eighth Circuit is published at 940 F.2d 1150

(8th Cir. 1991), and is reproduced in the Appendix

beginning at page A-l. The opinion of the District

Court is unpublished. Excerpts appear in the Appendix

beginning at page A-20.

JURISDICTION

The opinion of the United States Court of Appeals

for the Eighth Circuit was filed on July 26, 1991. A

timely petition for rehearing, with three judges

dissenting, was denied on October 11, 1991. (A-18.)

This petition for a writ of certiorari was filed within

90 days of the denial of the petition for rehearing.

bed Court has juridiction pursuant to 28 U.S.C. §

1).

CONSTITUTIONAL PROVISIONS

INVOLVED

This Petition involves the Ex Post Facto Law Clause

of the United States Constitution, Article 1, § 9, Clause

3, which states:

No Bill of Attainder or ex post facto law shall be

passed.

This Petition also involves the Due Process Clause

of the Fourteenth Amendment to the United States

Constitution, which provides in relevant part:

[Nor shall any State deprive any person of life,

liberty, or property, without due process of law:

STATEMENT OF THE CASE

In December 1976, Bailey was charged with various

criminal offenses in Minnesota state court. In May 1977,

he pled guilty to the charges and was sentenced to various

terms of imprisonment, all to be served concurrently.

Execution of Bailey’s sentence was stayed, however,

pending an examination to determine whether he was in

need of psychiatric treatment. Such an examination was

made, and in July 1977 Bailey was civilly committed to

the Minnesota Security hospital “for care, treatment, and

custody... .”

Approximately two years later, the Minnesota

Department of Human Services (“DHS”), which has

jurisdiction over the Security Hospital, ordered Bailey

transferred to the Minnesota Department of Corrections

(“DOC”) to serve his prison sentence. He remains under

civil commitment and thus will be subject to the custody of

DHS upon finishing his prison sentence.

Bailey commenced this action, pro se, in December 1982

against various DHS! and DOC? officials and employees

(hereafter collectively “the State”). His Second Amended

Complaint asserted five causes of action. Jurisdiction in

the District Court was based upon 28 U.S.C. § 1331 and §

1343(a).

Two of Bailey’s claims are the subject of this Petition for

a Writ of Certiorari. The first is Bailey’s claim that the

State is violating his rights under the ex post facto clause,

U.S. Const., Art. I, § 9, clause 3, by retroactively applying

a state regulation which precludes Bailey from being

annually considered for parole. The statute and regula-

tions in effect at the time of Bailey’s crimes required that

' Respondents Noot, Sheppard, and Beltt.

* Respondents Pung, Green, McRae, Alstad, Bruion, Greencrow and

Skwiera.

3 Counsel of Record in this Court was appointed to represent Bailey by

the District Court in 1984. The Eighth Circuit continued that court-

appointment for purposes of appeal.

prisoners receive annual reviews at which they could be

considered for a change in their release date (parole).

Application of the new regulation to Bailey denies him

that previously existing opportunity for parole and means

that he now must serve his sentence to expiration.

The second claim is that the State is violating Bailey's

rights under the due process clause of the fourteenth

amendment by failing to provide him with such minimally

adequate treatment as will give him a reasonable

opportunity to end his civil commitment to the Minnesota

Security Hospital. The State’s failure to provide such

treatment to Bailey means that his civil commitment is in

effect a life sentence. Once Bailey completes his prison

sentence, he will be returned to the Security Hospital

where he may spend the rest of his life unless the State is

required to provide minimally adequate treatment.

A. Bailey’s Ex Post Facto Law Claim.

Under Minnesota law as it existed at the time of

Bailey’s crimes, the Minnesota Corrections Board (“MCB”)

functioned as the State’s parole agency. See Minn. Stat. §

243.05 (1971) (repealed). (A-28.) Pursuant to both its

governing statute and its own regulations, the MCB has

the authority to set release dates and to grant, deny, or

revoke parole. See id. §§243.05-243.12 (1971); Minnesota

Corrections Bd.: Adult and Youthful Offender Parole

Policies and Procedures (July 1977) (hereafter “Policies &

Procedures”). Each inmate was entitled to an annual

review of his case by the MCB, and one purpose of this

annual review was to decide whether his release date

should be revised. See Policies & Procedures §§7-101-.15-

16, 7-101.19(a), 7-104.4(b). (A-30-31.)

Consistent with its regulations, the MCB met (he first

two years Bailey was under its control, assigned an initial

release date of the expiration of his sentence and later

conducted an annual review. Effective June 30, 1982, the

MCB went out of existence. Prior to disbanding, the MCB

met and reviewed all cases in which an inmate had been

assigned a release date of the expiration of their sentence.

C—O

Bailey's case was among those reviewed. The MCB

decided to continue Bailey’s release date as the expiration

of this sentence.

After abolition of the MCB, authority to grant parole

was transferred to the commissioner of corrections. See

Minn. Stat. § 243.05, subd. 1 (1989). (A-28.) The

commissioner was authorized to “adopt rules in accor-

dance with Chapter 14, The Administrative Procedure

Act, governing the procedures for granting of conditional

release and final discharge.” Minn. Stat. § 243.05, subd. 2

(1989). (A-28-29.)

The commissioner exercised this authority and

promulgated new regulations establishing an Office of

Adult Release (“OAR”). See 3 Minn. Rules §§ 2940.0200-

2940.0400. The particular regulation whose application to

Bailey is at issue in this case addresses “{i}ncarcerated

inmates with indeterminate sentences governing their

release dates which were established prior to July 1,

1982.” Jd. § 2940.1500, subp. 2. (A-29.) For those prisoners

the regulation provides: “{a/]ll release dates established by

the [MCB] will be left in full force and effect by the

commissioner.” /d. § 2940.1500, subp. 2(A). (A-29.) In other

words, the commissioner and his delegatee, the OAR, are

now legally forbidden to revise the parole dates of inmates

in Bailey’s position. A narrow exception to this prohibition

is allowed to “correct{] mathematical, data entry, or

computational errors” and to reflect system-wide policy

changes. Jd. § 2940.1550, subp. 2(B). (A-29.) But the

commissioner and the OAR are now without legal

authority to alter the release dates of inmates like Bailey

based upon individualized, annual consideration of the

circumstances of each case.

Under the statutes and regulations in effect at the time

of his offense, Bailey could have been paroled at any time.

He was entitled to an annual review at which his release

date could be altered. Under the statute and regulations

enacted after his offense, Bailey is ineligible for parole.

See 3 Minn. Rules § 2940.1500, subp. 2(B). (A-29.)

Without question, these new regulations are being

retroactively applied to Bailey. Since 1981 Bailey has

received no further review or consideration for parole. The

results of his annual review no longer may result in

consideration of a change in his release date. Since 1982,

Bailey has sent letters to various State officials including

the OAR requesting that his case be reviewed for the

purpose of considering a change in his release date or

parole. In each instance Bailey has been told that the new

regulations preclude any such review. (See A-22.) The

State itself, in the deposition testimony of its agents, the

opinion letter of an assistant attorney general, and

correspondence with Bailey, has consistently asserted

that the new regulations have the force and effect of law

and preclude any consideration for a change in release

date or parole. As the State recognizes, the retroactive

application of these regulations disadvantage Bailey

because they make consideration for parole or a change in

his release date impossible or more difficult than under

the system in effect at the time of Bailey’s crimes. Bailey

must now serve his entire term of imprisonment without

the opportunity for parole or an early release that

previously existed.

B. Bailey's Right To Treatment Claim.

Before execution of his prison sentence, Bailey was

examined to determine if he should be civilly committed.

The State court found that Bailey was not mentally ill or

deficient, but that he did exhibit “emotional instability,

impulsiveness of behavior, and lack of customary

standards of good judgment ... .” The court therefore

committed Bailey to the Minnesota Security Hospital “for

care, treatment, and custody ... .” (emphasis added).

Athough the director of the Security Hospital understood

that persons committed to his care were to receive

treatment, and that Bailey was in need of treatment, the

director soon decided after Bailey arrived that he wanted

to get rid of Bailey and would not provide treatment.

Indeed, the director’s sworn deposition testimony is

surprisingly frank in this regard:

Q. Did you want to provide treatment to Mr. Bailey,

Doctor?

A. Basically, no.

Bailey requested treatment while at the Security

Hospital. Consistent with the director’s expressed intent,

however, Bailey was never provided with treatment.

Instead, Bailey was simply incarcerated.

Because he had not received treatment, Bailey brought

a complaint before the Security Hospital Review Board.

After hearing evidence from both sides, the Review Board

found “that Mr. Bailey, since his commitment to the

Minnesota State Security Hospital, has been wholly

deprived of treatment of any kind, including medication.

The Board finds, in addition, that Mr. Bailey does not

have a treatment plan; nor does he have a ‘one-to-one’.”

Although the Review Board ordered treatment, the

Security Hospital instead commenced administative

proceedings to have Bailey transferred to DOC to begin

serving his prison sentence. Eventually, DHS succeeded.

However, Bailey’s civil commitment remains. Upon

completion of his prison sentence, Bailey will be returned

to the Security Hospital. He can only be discharged from

his civil commitment if a special review board determines

that he no longer is dangerous to others. See Minn. Stat. §

253A.15 (1979). Without minimally adequate treatment as

will give him a reasonable opportunity to end the

commitment, however, Bailey’s civil commitment is in

effect a life sentence.

C. The Lower Courts’ Decisions.

Following discovery, Bailey moved for summary

judgment against the State on his ex post facto law claim.

The State also moved for summary judgment on the same

claim, and on all of Bailey’s other claims including his

right to treatment claim. A magistrate issued two reports

and recommendations recommending that the State's

motions be granted. Bailey appealed to the district court

for de novo review.

The District Court basically adopted the magistrate’s

reports. On the ex post facto law claim, however, the

District Court held that because state law precludes the

retroactive application of a regulation which has the

effect of postponing eligibility for parole, see Minn. Stat. §

243.05, subd. 1(d) (1989), the new regulation being

retroactively applied to Bailey could not be a “law” for

purposes of the ex post facto clause because such

retroactive application would exceed the rulemaking

authority granted the commissioner of corrections. (See

A-22-27.) On Bailey’s right to treatment claim, the District

Court held that Bailey had not come forward with

sufficient factual evidence that the State had not provided

him with minimally adequate treatment to avoid summary

judgment.

Bailey appealed the District Court’s decision to the

Eighth Circuit. The panel that heard his appeal issued a

splintered decision affirming the District Court’s dismissal

of Bailey’s ex post facto law claim. See Bailey v. Noot, 940

F.2d 1150 (8th Cir. 1991) (reproduced in the Appendix

beginning at page A-1.)

One judge ruled that the new regulation in issue was not

a “law” for purposes of the ex post facto clause because the

commissioner of corrections retains the power to amend

or change the regulations in accordance with the state

administrative procedures act. The judge also compared

the State’s new regulation to the federal parole

commission’s discretionary guidelines. See id. at 1155.57

The second panel judge concurred only in the result on

Bailey’s ex post facto law claim. He did not explain his

reasoning however. See id. at 1157.

Chief Judge Lay dissented from the panel majority's

decision on Bailey’s ex post facto law claim and would

have reversed the District Court on that issue. Chief

Judge Lay pointed out that the federal parole guideline

cases are inapposite. Unlike the regulation in Bailey's

case, the federal parole commission has discretion to

ignore its own guidelines. In contrast, the OAR in Bailey's

case is bound by the new regulation and has no discretion

to ignore it. Id. at 1158-59. In addition, the fact that the

commissioner can always amend the regulation does not

mean the regulation is not a law. “The ex post facto clause

would have little effect if the legislature could accomplish

through administrative action what it is prohibited from

doing through legislation.” Jd at 1159 (Lay, C.J.,

dissenting).

On Bailey’ s right to treatment claim, the panel was

unanimous in affirming the District Court. The Eighth

Circuit’s reasoning, however, was that “Bailey, as a

dangerous psychopath civilly committed for the purpose

of safekeeping, simply does not have the constitutional!

right he claims” to minimally adequate treatment. /d. at

1154.

Bailey filed a timely petition for rehearing and a

suggestion for rehearing en banc. The Eighth Circuit

denied the petition, although three judges voted to rehear

Bailey’s ex post facto law claim en banc. (A-18-19.)

ARGUMENT FOR GRANTING

THE WRIT

I. THISCOURTSHOULDGRANT THE PETITION

bo maa BAILEY’S EX POST FACTO LAW

The ex post facto clause “forbids the application of any

new punitive measure to a crime already consummated, to

the detriment or material disadvantage of the wrongdoer.”

Lindsey v. Washington, 301 U.S. 397, 401 (1937). Three

elements must be present in order to violate the ex post

facto clause: (1) the statute, rule, regulation or other action

challenged must be a “law” for purposes of the clause; (2)

the law must have been applied retroactively; and (3) the

retroactive application of the law must have disadvantag-

ed the individual affected by it. Weaver v. Graham, 450

U.S. 24, 29 (1981).

The existence of the second element -- retroactive

application ~ is conceded by the State. The State is

applying to Bailey regulations that came into existence

after the date of his offense. See id. at 31.

The Eighth Circuit’s minority opinion that the new

regulation being applied to Bailey is not a “law” for

purposes of the ex post facto clause is demonstrably

wrong. The new regulation does have the force and effect

of law. The new regulation was adopted pursuant to

authority delegated by the legislature. See Minn. Stat. §

243.05, subd. 2 (1989). (A-28.) By statute, the new regulations

“have the force and effect of law ... .” Minn. Stat § 14.38,

subd. 1. (A-28.) As “a legislative rule promulgated

pursuant to statutory authority,” the regulation “is valid

and is as binding upon a court as a statute.” State v. Hopf.

323 N.W.2d 746, 752 (Minn. 1982) (citations omitted). More

importantly, the new parole regulations are also binding

upon the commissioner and his delegatee, the OAR.

Even though the adopting of the rule was a discretionary

function, once the rule is in force the adopting agency does

not have discretion to disregard it.” State ex rel. Indep.

Sch. Dist. No. 6 v. Johnson, “7 Minn. 539, 548, 65 N.W.2d

668, 673 (1954).

The cases interpreting the federal parole guidelines

relied upon by the Eighth Circuit are inapposiie. Those

guidelines do not represent “the exercise of delegated

authority” but are instead “ ‘merely guides, and not laws:

guides may be discarded where circumstances require;

laws may not.’” Prater v. U.S.P.C., 802 F.2d 948, 954 (7th

Cir. 1986) (en banc) (quoting Jnglese v. U.S.P.C., 768 F.2d

932, 936 (7th Cir. 1985) Almost every case addressing the

validity of retroactive application of the federal parole

guidelines has turned on the fact that the guidelines do

not bind the U.S. Parole Commission. Time and again,

courts stressed that the U.S. Parole Commission was free

to depart from its own guidelines. That is not the case

here. Bailey’s release date “shall be left in full force and

effect” by the OAR. 3 Minn. Rules § 2940.1500, subp. 2(a).

(A-29.)

Moreover, the fact that the commissioner of corrections

retains authority to revise the regulations does not render

them outside the scope of the ex post facto clause. A

legislature cannot avoid the ex post facto clause by

delegating rulemaking authority to an agency. “When [a

legislature] has delegated to an agency the authority to

make a rule it is an extension of the statute for purposes of

the [ex post facto] clause. What [a legislature] cannot do

directly, it cannot do by delegation.” Rodridguez v.

USPC, 594 F.2d 170, 173 (7th Cir. 1979). Clearly, if the

Minnesota legislature had adopted a statute taking away

Bailey’s pre-existing right to be reviewed annally for

parole, such a statute would be deemed a “law” for

purposes of the ex post facto clause. It is the discretion

retained by the agency under its own regulatiuns that is

determinative, not the discretion granted by the governing

statute. See generally Prater v. U.S.P.C., 802 F.2d 951-54.

Here, the OAR has no discretion to ignore 3 Minn. Rules §

2940.1500, subp. 2(A). By statute it has the force and effect

of law and may not be ignored. See Minn. Stat. § 14.38,

subd. 1. (A-28.)

The fina! element necessary for finding a violation of

the ex post facto clause also is present in this case. Bailey

no longer has any right to be considered annually for

parole. Indeed, the District Court conceded that “the

current OAR regulations are less favorable than the

former MCB guidelines.”

This Court has warned that “a repealer of parole

eligibility previously available to imprisoned offenders

would clearly present a serious question under the ex post

facto clause ....” Warden v. Marrero, 417 U.S. 653, 663

(1974) (emphasis in original). This Court has stated that

“depriving a prisoner of the right . . . to qualify for, and

hence earn, parole’” is a detriment to which the ex post

facto clause is addressed. Weaver v. Graham, 450 U.S. at

34 (quoting Greenfield v. Scafati, 277 F. Supp. 644, 646 (D.

Mass. 1967), aff'd mem., 390 U.S. 713 (1968) ). See Warden

v. Marrero, 417 U.S. at 662 (“only an unusual prisoner

could be expected to think that he was not suffering a

penalty when he was denied eligibility for parole’’).

This Court has previously held that retroactively

depriving an inmate of the opportunity to shorten his

confinement -- precisely what has happened to Bailey

-violates the ex post facto clause. The changes at issue in

Weaver v. Graham were struck down because they

“reduced [the inmate’s] opportunity to shorten his time in

prison.” 450 U.S. at 33-34 (emphasis added). The changes

at issue in Lindsey v. Washington were struck down

because they deprive the offender of “all opportunity to

receive a [less onerous] sentence.” 301 U.S. at 402

(emphasis added). The fact that Bailey might not be given

parole or an early release date even under the old guidelines

does not matter. See Miller v. Florida, 482 U.S. 423 (1987);

Lindsey v. Washington, 301 U.S. at 401-02. In retroactively

applying the new regulation to Bailey, the State has

“expressly remove[d] all hope of parole’” and thus there

is no question that its action “‘is in the nature of an

additional penalty’” prohibited by the ex post facto

clause. Warden v. Marrero, 417 U.S. at 663 (quoting

Durant v. United States, 410 F.2d 689, 691 (ist Cir. 1969) ).

A. This Claim Raises Important Issues Of Constitu-

tional Law Unresolved By This Court.

This Petition raises the important issue of whether the

ex post facto clause applies to a change in parole eligibility.

This Court has never directly held that parole eligibility is

part of a prisoner’s sentence subject to the prohibitions of

the ex post facto clause. In dicta, the Court has commented

that “a repealer of parole eligibility previously available

to imprisoned offenders would clearly present a serious

question under the ex post facto clause ....” Warden v.

Marrero, 417 U.S. at 663 (emphasis in original). Various

circuit courts have addressed the issue and indicated,

contrary to the Eighth Circuit, that parole eligibility is

subject to the ex post facto clause. See, e.g., Fender v.

Thompson, 883 F.2d 303, 306 (4th Cir. 1989); United States

ex rel. Graham v. U.S.P.C., 629 F.2d 1040, 1043 (5th Cir.

1980); Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977).

But this important issue has never been resolved by this

Court.

In addition, this Petition presents the important

constitutional law issue of the appropriate method of

analysis for deciding whether regulations have the force

and effect of law. The Eighth Circuit looked to the

discretion retained under the statute to change the

regulation in issue. See 940 F.2d at 1156. Other circuits,

however, have looked to the discretion retained under the

regulations to ignore the regulations. See, e.g., Prater v.

U.S.P.C., 802 F.2d at 954; Rifai v. U.S.P.C., 586 F.2d 695,

698 and n.5 (9th Cir. 1978). This question has never been

addressed by this Court.

The importance of both these issues go beyond this case.

They are recurring constitutional questions which are

vital to application of the ex post facto clause in the

context of regulations affecting parole eligibility. This

Court should grant the Petition to address these important

unresolved questions of constitutional law.

B. The Eighth Circuit’s Opinion Is Contrary To The

Decisions Of This Court And Other Circuit

Courts.

As suggested by the previous analysis (see supra pages

10-12), the Eighth Circuit’s decision is contrary to the

rationale of a number of decisions of this Court interpreting

and applying the ex post facto clause. Under any

principled application of the ex post facto clause and this

Court’s decisions, the new regulation being retroactively

applied to Bailey should be struck down. The Eighth

Circuit also ignored controlling Minnesota law -— both

statutory and case law - which clearly provides that the

new regulations being applied to Bailey have the force

and effect of law and may not be disregarded by the OAR.

This Court should grant the Petition to correct these

egregarious errors.

Moreover, the Eighth Circuit’s decision creates a split

among the circuit courts on various issues. The Eighth

Cireuit’s decision is directly contrary to the Eleventh

Circuit’s recent decision in Akins v. Snow, 922 F.2d 1558

(11th Cir.), cert. denied, 111 S. Ct. 2915 (1991).

In Akins, the plaintiffs challenged the retroactive

application of new state regulations which had the effect

of delaying their ability to be considered for parole as

opposed to the regulations in effect at the time of their

offenses. Jd. at 1559-60. The Eleventh Circuit did not

simply conclude that because the state agency in question

could always change the regulations they were not “laws”

for purposes of the ex post facto clause. Rather, the court

pointed out that the state agency was acting as a delegatee

of the state legislature and therefore any regulations

promulgated by the state agency were subject to the ex

post facto clause. Jd. at 1561. The Eleventh Circuit went

on to hold that because the new regulations delayed

parole eligibility, they ran afoul of the ex post facto clause.

Id. at 1562-63.

The Eighth Circuit’s decision also creates a split among

the circuit courts concerning the method of analysis for

analyzing asserted violations of the ex post facto clause

by retroactively applied regulations. As indicated

previously, most circuits have looked to the discretion

retained under the regulations to decide if a new regulation

was a “law” within the scope of the ex post fact clause.

See, e.g., Smith v. U.S.P.C., 875 F.2d 1361, 1367 (9th Cir.

1988); Prater v. U.S.P.C., 802 F.2d at 953-54. The Eighth

Circuit, however, looked to the discretion retained to

amend the regulations. 940 F.2d at 1156. But every

legislature has the power to change the law, that is the

reason for the protection provided by the ex post facto

clause.

Finally, to the extent the Eighth Circuit's opinion can

be construed as deciding that changes in eligibility for

parole do not violate the ex post facto clause, another split

among the circuit courts is created. Every other circuit

court that has addressed the issue has determined that the

ex post facto clause applies to a change in a prisoner s

eligibility for parole. See, e.g., Akins v. Snow, 922 F.2d at

1563; Fender v. Thompson, 883 F.2d at 306; United States

ex rel. Graham v. U.S.P.C., 629 F.2d at 1043; Rodridguez v.

U.S.P.C., 594 F.2d 170, 176 (7th Cir. 1979); Breest v.

Helgemoe, 579 F.2d 95, 102 (1st Cir.), cert denied, 439 U.S.

933 (1978); Shepard v. Taylor, 556 F.2d at 654.

This Court should grant this Petition in order to resolve

the splits among the circuit courts and to insure that this

Court’s decisions interpreting the ex post facto clause are

properly and uniformly applied. These issues will continue

to arise and will continue to confound litigants, attorneys

and the lower courts if Bailey’s Petition is not granted.‘

C. The Eighth Circuit’s Reasoning Effectively

Reads The Ex Post Facto Law Clause Out Of

Existence.

As cogently expressed by Chief Judge Lay in his

‘ A clear illustration of the need for review by this Court is the fact that

four different United States judges now have reviewed Bailey's ex post

facto law claim and none have agreed on the reasoning to resolve the

claim.

dissent, see 940 F.2d at 1158-59, the reasoning adopted by

the Eighth Circuit effectively reads the ex post facto

clause out of existence, “if the legislature[can] accomplish

through administrative action what it is prohibited from

doing through legislation. [I]}t is imperative that binding

administrative action be considered a legislative act for

purposes of the ex post facto clause.” Jd. at 1159. If a state

legislature -- or Congress -- can circumvent the ex post

facto clause simply by delegating to an administrative

body the power to do an act which the legislature could not

do directly, then the intent of the Founding Fathers in

placing the ex post facto clause in Article I of the

Constitution can be easily frustrated. The ex post facto

clause will effectively cease to exist, arising only when a

legislature foolishly acts directly instead of delegating to

a willing administrative agency.

Accordingly, this Court should grant Bailey’s Petition

for a Writ of Certiorari to review the decision of the Eighth

Circuit on his ex post facto law claim. This Petition raises

important, recurring, and unresolved issues of

constitutional law. The Eighth Circuit’s opinion is

contrary to reasoning of other decisions of this Court,

ignores applicable Minnesota state law, and creates a

split among the circuit courts on several issues. Finally,

the Eighth Circuit’s opinion effectively reads the ex post

facto clause out of existence. The extraordinary power of

this Court to grant a writ of certiorari should be exercised

in this action.

Il. THIS COURT SHOULD GRANT THE

PETITION TO REVIEW BAILEY’S RIGHT

TO TREATMENT CLAIM.

In deciding Bailey’s claim that he had been denied

treatment by DHS, the Eighth Circuit simply held that

Bailey, as a dangerous person civilly committed in part

for safekeeping, “simply does not have the constitutional

right he claims.” 940 F.2d at 1154. This reasoning -- that a

civilly committed person dangerous to others does not

have a constitutional right to minimally adequate

treatment - raises an important, unresolved issue of

constitutional law. The Eighth Circuit’s reasoning also is

contrary to the decisions of several other circuits. This

Court should therefore grant Bailey’s Petition to review

his denial of treatment claim.

A. This Claim Raises An Important Issue Of

Constitutional Law Unresolved By This Court.

The issue presented by Bailey’s denial of treatment

claim is whether a person who is civilly committed as

dangerous to others has a constitutional right under the

due process clause of the fourteenth amendment to receive

minimally adequate treatment such that the person has a

reasonable opportunity to end the commitment. This

Court has never directly addressed this important issue.

In Youngberg v. Romeo, 457 U.S. 307 (1982), this Court

addressed the question of whether a civilly committed

retarded person had a constitutional right to receive

minimally adequate training to be free from unreasonable

restraints. This Court held that such a constitutional

right existed. Jd. at 322.

In Jackson v. Indiana, 406 U.S. 715 (1972), this Court

addressed the question of whether a person who was

incompetent to stand trial could be indefinately committed.

This Court held that such an indefinate commitment

violated the fourteenth amendment’s due process clause.

Id. at 731, 736-39.

This case presents the conjunction of those two prior

decisions of this Court. If a person such as Bailey does not

have aconstitutional right to receive minimally adequate

treatment so as to have a reasonable opportunity to end

the commitment - as the Eighth Circuit held -- then his

civil commitment is in effect a life sentence which bypasses

the protections and procedures of the criminal justice

system.

Moreover, this Court has recognized the substantial

nature of this issue. In Humphrey v. Cady, 405 U.S. 504

(1972), the plaintiff was a convicted criminal committed to

a state hospital facility for an indefinite time for

treatment. /d. at 506. The plaintiff brought suit contending,

inter alia, that he has been deprived of treatment in

violation of his due process rights. /d. at 514. In reversing

the lower court’s dismissal of his claim, this Court stated

in passing that his allegations were ‘substantial

constitutional claims.” /d.

Bailey’s denial of treatment claim raises an important,

recurring question of constitutional law which has

importance beyond simply this case. Many states are

regularly pursuing civil commitment of dangerous persons

in addition to criminal proceedings. If a civilly committed

person has no constitutional right to minimally adequate

treatment simply because the person is dangerous, then

why even bother with criminal charges? Civil commitment

will simply amount to a life sentence. Bailey was civilly

committed, in part, to receive treatment. This Court

should decide whether Bailey has a constitutional right to

such treatment, or whether the State can effectively

impose a life sentence on Bailey via the civil commitment

procedure.

B. The Eighth Circuit’s Opinion Is Contrary To The

Decision Of Other Circuit Courts.

Rather than address the question of whether Bailey had

presented sufficient evidence to avoid summary judgment

(arguably because Bailey had presented evidence which

created material fact issues), the Eighth Circuit simply

held that Bailey did not have the constitutional right he

claimed. But no other circuit court that has considered the

right to minimally adequate treatment issue has reached

that result. The Eighth Circuit’s decision thereby creates

a substantial split among the circuits which this Court

should resolve.

A fourteenth amendment right to treatment for civilly

committed individuals was first recognized in Rouse v.

Cameron, 373 F.2d 451 (D.C. Cir. 1966). Since that time,

numerous courts have held that involuntarily committed

individuals, like Bailey, have a fourteenth amendment

right to treatment. See, e.g, Bowring v. Goodwin, 551 F.2d

44 (4th Cir. 1977); Wyatt v. Aderholt, 503 F.2d 1305 (5th

Cir. 1974). See alsoComment, Wyatt v. Stickney and the

Right of Civilly Committed Mental Patients to Adequate

Treatment, 86 Harv. L. Rev. 1282(1973). Indeed, treatment

is the guid pro quo for committing a person who is

dangerous to others. Wyatt v. Aderholt, 503 F.2d at 1312.

The fact that Bailey was deemed dangerous does not

deny him this constitutional right. In Eckerhart v.

Hensley, 475 F. Supp. 908, 914, 915 (W.D. Mo. 1979), the

court rejected an argument similar to the conclusion of the

Eighth Circuit and properly concluded “that due process

requires that [persons] who have been involuntarily

committed . . ., be provided with such treatment as will

give each of them a reasonable opportunity to be cured or

to improve his mental condition .. . . The fact that

plaintiffs have been deemed dangerous does not deprive

them of a constitutional right to treatment... .”

The Eighth Circuit’s contrary reasoning creates a split

’ ‘tween itself and at least the Fourth and Fifth Circuits

which have recognized a fourteenth amendment due

process right to minimally adequate treatment. This

recurring issue should be resolved by this Court granting

Bailey’s Petition on his denial of treatment claim.

CONCLUSION

For the foregoing reasons, Petitioner Clark Albert

Bailey prays that a Writ of Certiorari issue to the United

States Court of Appeals for the Eighth Circuit.

Dated: January 8, 1992

Alan M. Anderson

Counsel of Record

ROBINS, KAPLAN, MILLER

& CIRESI

2800 LaSalle Plaza

800 LaSalle Avenue

Minneapolis, MN 55402

(612) 349-8500

ATTORNEY FOR PETITIONER

APPENDIX

Opinion of the United States Court of Appeals

for the Eighth Circuit (July 26, 1991)

A-l

Order of the United States Court of Appeals

for the Eighth Circuit Denying Petition for

Rehearing (October 11, 1991)

Excerpts from the Opinion of the United

States District Court for the District of

Minnesota (June 27, 1989)

Minn. Stat. § 14.38, subd. 1 and 2

Minn. Stat. § 243.05 (1971) (repealed)

Minn. Stat. § 243.05, subd. 1 and 2

(1989) (current)

3 Minn. Rules § 2940.1500, subp. 2

Minnesota Corrections Board: Adult and

Youthful Offender Parole Policies and

Procedures (July 1977) Introduction and

§§ 7-101.13-.15, .19(a); 7-104.2(a);

7-104.4(a) (1), .4(b) pususneveenentnecnmenscemnassens

A-18

United States Court of Appeals

Hor The Lighth Circuit

No. 89-5219

Clark A. Bailey, :

Appellant, *

Vv. *

Sandra Gardebring, ; Appeal from the United

Commissioner of Human States District Court for the

Services, and State of ° District of Minnesota.

Minnesota, *

Appellees.

No. 89-5403

Clark Albert Bailey,

Appellant,

Arthur E. Noot, Orville

Pung, Charles G. Sheppard,

Leslie R. Green, William F. Appeal from the United

McCrae, Bruce M. Beltt, + States District Court for the

Richard A. Alstad, James District of Minnesota.

Bruton, Henry Greencrow,

and Dorothy Skwiera,

' Appellees.

See SE

eeeeeeeaee

Submitted: May 14, 1990

Filed: July 26, 1991

Before LAY, Chief Judge, BOWMAN, Circuit Judge, and

STUART," District Judge.

*The HONORABLE WILLIAM C. STUART, Senior United States

District Judge for the Southern Distnct of lowa, situng by designation.

A-l

BOWMAN, Circuit Judge.

In the latter part of 1976 Clark Albert Bailey kidnapped

and sexually abused a thirteen-year-old girl in Minnesota

and murdered her in Iowa. He pled guilty in Minnesota to

criminal sexual conduct in the first degree and kidnapping

and in Iowa to second degree murder. For these offenses

he received sentences of twenty years, forty years, and

forty years, respectively. All sentences are to be served

concurrently.

After sentencing Bailey for this Minnesota offenses, the

Hennepin County District Court stayed the sentences to

allow the probate court to obtain a psychiatric examination

of Bailey for possible civil commitment. Pursuant to

Minnesota Statutes §§ 526.09-11 (1976), the probate court

committed Bailey to the Minnesota Security Hospital as a

“psychopathic personality” on July 13, 1977. While at the

hospital, Bailey saw a number of psychiatrists and

psychologists and was an intermittent participant in

various treatment programs - most of which he dropped

out of citing nonspecific “religious objections.”

Approximately two years later, the Commissioner of

Public Welfare, who has jurisdiction over the Security

Hospital, ordered Bailey's transfer to the Department of

Corrections (“DOC”) to serve his prison sentence. The

transfer was not effected until May 18, 1981 because of,

first, Bailey’s extradition to Iowa for his guilty plea and,

second, Bailey’s initiation of various legal challenges to

the statutory authority for his transfer, concluding with

Bailey’s transfer in accordance with procedures prescribed

by the Minnesota Supreme Court.

Bailey is currently incarcerated at the Minnesota

Correctional Facility where he is serving concurrently his

various sentences for sexual abuse, kidnapping, and

murder. Various treatment programs are available there,

though none specifically geared to sexual offenders. He

remains under civil commitment as a pyschopathic

personality and thus will be subject to the jurisdiction of

the Commissioner of Public Welfare upon finishing his

prison sentence.

A-2

To this Court, Bailey brings two separate appeals. His

first appeal (No. 89-5219) is from the District Court’s'

denial of his federal habeas corpus petition under 28

U.S.C. § 2254 (1988). His other appeal (No. 89-5403) is from

the District Court’s grant of summary judgment for

defendants on his various civil rights claims under 42

U.S.C. § 1983 (1988). This opinion covers both of these

appeals, and in both we affirm the decision of the District

Court.?

We begin with Bailey’s habeas corpus case. After

exhausting his state remedies, Bailey brought a petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

claiming that his civil commitment necessarily was

discharged under Minnesota law when he was transferred

from the jurisdiction of the Commissioner of Public

Welfare to the DOC and, in addition, that Minnesota law

does not permit the commitment of a convicted criminal

as a “pychopathic personality” --which carries an

indeterminate commitment period --but only as a “sex

offender” - which carries a period of commitment limited

to the length of the penal sentence. Bailey also contends

that his dual commitment violates the Due Process Clause

of the United States Constitution, and that his

commitment as a psychopathic personality violates both

the Due Process and Equal Protection Clauses of the

Constitution. The District Court -- as had the state courts

before it - rejected Bailey’s claims, holding that his dual

commitment as well as his commitment as a pyschopathic

personality were proper under Minnesota law and did not

violate the Constitution. For reversal, Bailey repeats the

arguments he made in the District Court. Assuming for

purposes of this appeal that Bailey is “in custody” on his

civil commitment within the meaning of 28 U.S.C. §

' The Honorable David S. Doty, United States District Judge for the

District of Minnesota, presided over both cases.

2 References to briefs, addenda, and appendices will be distinguished

by a “I” (No. 89-5219) or a “II” (No. 89-5403.).

A-3

2254(a), see Maleng v. Cook, 490 U.S. 488, 490-94 (1989);

Peyton v. Rowe, 391 U.S. 54 (1968), we agree with the

District Court that his claims are without merit.

Minnesota state courts have interpreted the state civil

commitment statutes as not requiring that a civil

commitment order be discharged before transferring a

committee to the custody of the DOC. Bailey v. Gardebring,

No. C8-87-1839 (Minn. Ct. App. Mar. 8, 1988) reprinted in

Appellee’s Appendix I at A-l. Unless the underlying

statutes are constitutionally defective we must defer to

such an interpretation. See Parkerson v. Carrouth, 782

F.2d 1449, 1455 (8th Cir. 1986) (“{A]bsent an infirmity of

constitutional dimensions in th[e] law, it is not for a

federal court to say that a rule established by [a state]... is

unwise.”); Stoianoff v. Montana, 695 F.2d 1214, 1218 (9th

Cir. 1983) (“It is, of course, solely within the province of

the state courts to authoritatively construe state

legislation.”). Here there is no constitutional defect. The

Supreme Court has determined that a state may confine

people who pose a threat to themselves and other until the

danger has dissipated. See Addington v. Texas, 441 U.S.

418, 426 (1979). Minnesota’s civil commitment statutes

are constitutional, and Minnesota’s interpretation of

these statutes allowing Bailey to be transferred to the

DOC without being discharged from his civil commitment

thus is immune from attack in this Court.

The same analysis applies to Bailey’s claim that he was

improperly committed under Minnesota’s civil

commitment statute, section 526.09. As the underlying

statute is constitutional, we defer to the state court’s

interpretation to allow Bailey’s commitment pursuant to

section 526.09. Finally, with respect to Bailey’s equal

protection claim, as the District Court aptly put it, “[n]o

constitutional right is violated when persons who suffer

from severe disorders, such as petitioner, are treated

differently from persons with less serious conditions.”

Bailey v. Gardebring, No. 4-88-637 (D.Minn. Jan. 13,

1989), reprinted in Appellant’s Addendum I at A.2, A.12.

'-We affirm the i ee ops denial of Bailey’s

-4

application for writ of habeas corpus.

Il.

Bailey also appeals the District Court’s grant of

summary judgment against him on his various civil

rights claims under 42 U.S.C. § 1983 (1988). Bailey argues

that as either a civil or criminal commitee he has a

constitutional right to psychiatric treatment and that the

failure of various officials at both the Security Hospital

and the Correctional Facility to provide him with such

treatment is a violation of his Eighth and Fourteenth

Amendment rights. He also raises several arguments

regarding his parole date. As there is no factual dispute

and we find that the defendants are entitled to judgment

as a matter of law on all of Bailey’s claims, seeFed. R. Civ.

P. 56(c), we affirm.

We turn first to Bailey’s asserted right to treatment in

the civil context. Bailey claims that his need for psychiatric

treatment to overcome a “sexual offender condition” is

analogous to a need for treatment of a bleeding ulcer or

diabetes. The defendant hospital administrators argue

they did not violate Bailey’s constitutional right to receive

psychiatric treatment.

The Supreme Court addressed the issue of a right to

behavioral-modification treatment in the context of civil

commitment in Youngberg v. Romeo, 457 U.S. 307 (1982).

Romeo, the civilly committed resident in Youngberg, was

a thirty-three-year-old man with the mental capacity of an

eighteen-month-old child. He was not committed because

he posed any particular danger to the community but

because of his severe retardation. Romeo had sustained

injuries numerous times during his commitment, some

self-inflicted and some from residents reacting to his

agressive behavior. To prevent Romeo from harming

himself or other residents, he occasionally had been

restrained with soft arm shackles. Romeo argued that

training programs aimed at his self-control and interaction

problems would have lessened the need for these

A-5

restraints.* The Court held that the Constitution required

only such “minimally adequate training . . . as may be

reasonable in light of [the] liberty[] in safety and freedom

from unreasonable restraints.” 457 U.S. at 322.4

Here, Bailey was committed as a pychopathic

personality and was neither in danger during his civil

commitment nor was he subject to any restraints beyond

the ordinary incidents of any involuntary confinement.

The decisions of the psychiatrists at the Security Hospital

regarding his treatment were presumptively valid, see

Youngberg, 457 U.S. at 323, and he has not made any

showing to overcome this presumption of validity. In

addition, the legitimacy of Bailey’s commitment is not in

doubt. He has manifested his dangerousness by, inter

alia, sexually abusing, kidnapping, and murdering a

‘His treatment at the hospital once had included such training

programs as well as programs teaching him feeding, showering,

drying, dressing, and toilet training. Youngberg v. Romeo, 457 U.S.

307, 311 n.7 (1982).

‘ Even this narrow right to treatment -- explicitly tied to the avoidance

of “unreasonable” restraints such as arm shackles — was further

attentuated by the extreme deference the Court held was to be accorded

qualified professionals at state institutions: “[W]e emphasize that

courts must show deference to the judgment exercised by a qualified

professional. By so limiting judicial review of challenges to conditions

in state institutions, intereference by the federal judiciary with the

internal operations of these institutions should be minimized.” 457

U.S. at 322. Bailey can succeed on his claim only if he can show that the

“presumptively valid” decision of the hospital psychiatrists not to

provide the sort of treatment he seeks was “such a substantial

departure from accepted professional judgment, practice, or standards

as to demonstrate that the person responsible actually did not base the

decision on such a judgment.” 457 U.S. at 323. We agree with the

District Court “that there is insufficient evidence for a reasonable

factfinder to conclude that the DHS defendants’ decisions” were a

substantial departure from accepted professional practice. Bailey v.

Noot, No. 4-85-1245 (D.Minn. June 28, 1989), reprinted in Appellant's

Addendum II at A58, A67.

thirteen-year-old girl.» His confinement at the Security

Hospital was founded on the peril he would pose to the

community, and particularly to its children, if released. In

these circumstances Bailey, as a dangerous psychopath

civilly committed for the purpose of safekeeping, simply

does not have the constitutional right he claims. The

District Court therefore was correct in its grant of summary

judgment for defendants on Bailey’s section 1983 claims

based on the professional judgments made concerning his

psychiatric treatment during his civil commitment.

Bailey aiso claims that the prison administrators are

under a constitutional obligation to provide him with

psychiatric treatment geared towards sexual offenders

and that their failure to do so constitutes cruel and

unusual punishment. He argues that the District Court

erred in holding that defendants are entitled to summary

judgment on this branch of his case. We disagree.

It is of course true that having incarcerated a prisoner,

and therby having prevented him from obtaining

treatment on his own, the state may be found to have

inflicted cruel and unusual punishment by failing to

provide needed medical treatment. Bailey’s allegations,

however, viewed in the light most favorable to him, do not

present a factual dispute. In Estelle v. Gamble, 429 US. 97

(1976), the Supreme Court held that “deliberate indif-

ference to serious medical needs of prisoners constitutes

the ‘unnecessary and wanton infliction of pain’ proscribed

by the Eighth Amendment.” 429 U.S. at 104 (citation

omitted). The right to treatment recognized in Este//e has

limits that Bailey’s claimed right to psychiatric treatment

exceeds. . .

That the prison administrators’ failure to provide

5 r signs of Bailey’s dangerousness include his sexually abusing

ee eabaen thandiabe Appendix II at A-144), allegedly

forcing homosexual activity on other residents at the Security Hospital

(Appellee’s Appendix II at A-74), and stating that he ‘{doesn t) really

want thfe] treatment” for his pedophilia. (Appellee’s Appendix II at

A-75).

A-7

medical care must rise to the level of “deliberate

indifference” presupposes the availability of a cure or at

least some accepted form of treatment for the prisoner’s

medical needs: if there is nothing that can be done, or no

accepted way of treating the condition, “deliberate

indifference” is indistinguishable from steadfast vigilance.

A condition for which there is no known or generally

recognized method of treatment cannot serve as a predicate

for the conclusion that failure to provide treatment

constitutes “deliberate indifference to the serious medical

needs of prisoners.” Cf City of Canton v. Harris, 489 U.S.

378, 397 (1989) (O’Connor, J., concurring) (“The lack of

training [in the diagnosis of mental illness] is not the kind

of omission that can be characterized, in and of itself, as a

‘deliberate indifference’ to constitutional rights.’’);

Eckerhart v. Hensley, 475 F. Supp. 908, 914-15 n.16 (W.D.

Mo. 1979) (“[T]he state’s inability to provide a dangerous

person with a reasonable opportunity to be cured or to

improve his mental condition because no effective

treatmentis known would not render unconstitutional his

involuntary confinement for the protection of himself or

others.”’).

Here, treatment programs in the prison are available to

Bailey. None of these programs, however, is specifically

directed toward psychopathic individuals who have

committed sexual offenses. But there is in this record no

evidence of the existence of any cure or even of any

generally accepted method of treatment for sexual

psychopaths like Bailey. Hence, the failure of the prison

administrators to provide Bailey with the precisely tailored

psychiatric treatment he seeks cannot fairly be described

as “deliberate indifference.”

Absent a reliable medical diagnosis of some serious

mental illness that can be alleviated, at least symptomati-

cally, by some known treatment, prisoners have no

consitutional right to state-provided pschiatric treatment,

and we do not understand Lste//e to hold otherwise. On

this record, we are satisfied that the District Court

correctly granted summary judgment for defendants on

the ground that they were not “deliberately indifferent to

Bailey’s serious medical needs.” Bailey v. Noot, No. 4-85-

1245 (D.Minn. June 28, 1989), reprinted in Appellant’s

Addendum II at A58, A67.

Bailey’s remaining claims, which the District Court

also rejected, relate to his eligibility for parole. He argues

that certain changes in parole review procedures effected

during his incarceration violate the Ex Post Facto Clause;

that the failure of the paroling authority to grant him

notice and an opportunity to be heard prior to setting his

release date violated his due process rights; and that the

paroling authority also violated Bailey’s due process

rights by conditioning his parole on a finding that Bailey

is “no longer a danger to the public in general and/or

young females specifically.” Appellant’s Appendix II at

173. We find no merit in any of these claims.

Bailey’s contention that the Ex Post Facto Clause, U.S.

Const. art. I, § 9, cl. 3, has been violated concerns the

alteration in procedures governing grants of parole at the

Minnesota Correctional Facility. When Bailey was first

admitted to the Correctional Facility, paroling authority

was vested in the Minnesota Corrections Board (“MCB”’).

Soon thereaftex the Minnesota legislature abolished that

body and transferred paroling authority to the

Commissioner of the Minnesota Department of

Corrections. Both the MCB and now the Commissioner

had (have) the power to “parole any person sentenced to

confinement,” subject only to a few limitations on this

discretionary power not pertinent to our inquiry. Minn.

Stat. § 243.05 subd. 1 (1990). Pursuant to this discretionary

power, the Commissioner issued administrative rules

governing grants of parole. These rules incorporated all

the release dates that had been set by the MCB prior to its

dissolution and established a new agency, the Office of

Adult Release (“OAR”), to make future decisions regarding

A-9

parole. These new regulations do not provide for a yearly

review of an inmate’s release date, and they limit the

OAR’s discretion in changing an inmate’s release date.

Bailey claims that the failure of the new regulations to

provide for an annual review of his release date -- as was

required under previous system -- retroactively increases

his punishment and thus contravenes the Ex Post Facto

Clause.

Although this Court has not yet decided whether the

federal parole guidelines are “laws” within the meaning

of the Ex Post Facto clause, see Yamamoto v. U.S. Parole

Comm'n, 794 F.2d 1295 (8th Cir. 1986), we have noted with

favor the decisions of other circuits holding that the

federal parole guidelines are not “laws”. /d. at 1299. We

believe the reasoning used in those cases applies to the

Minnesota parole regulations. “(T]he operative factor in

assessing whether a directive constitutes a ‘law’ for ex

post facto purposes is the discretion that the [paroling

authority] retains to modify that directive.” Smith v.

United States Parole Comm'n, 875 F.2d 1361, 1367 (9th

Cir. 1989) “The key to the finding that [federal parole]

guidelines are guides merely, and not laws, is that the

Parole Commission has a congressional mandate . . . to

exercise discretion. . . . How often that discretion is

exercised is immaterial.” Jnglese v. United States Parole

Comm n, 768 F.2d 932, 937 (7th Cir. 1985) (citations

omitted). “Applying the [ex post facto] rule to changes in

parole administration ... would discourage the formulation

and publication of administrative policies.” Prater v. U.S.

Parole Comm in, 802 F.2d 948, 953 (7th Cir. 1986) (en banc).

The Minnesota parole regulations are procedural aids

to the body vested with the discretionary authority granted

by the state legislature. The decision to promulgate the

regulations first by the MCB and now by the Commissioner

was itself a discretionary decision; neither was required

by law to issue specific regulations. The “parole law” in

effect at the time of Bailey’s illegal acts was that the

paroling authority of the state (the MCB) was free to

parole any inmate, subject only to a few limitations. The

A-10

“parole law” in effect now is still that the state paroling

authority (the Commissioner) is free to parole any inmate.

The only changes that have been made are that the power

to parole has changed haiuds and that the paroling

authority’s internal regulations governing the exercise of

that power have been modified. A change in the body

vested with paroling authority is not a violation of the Ex

Post Facto Clause; neither is a change in the manifestation

of a discretionary power that itself has remained

unchanged.®

The majority of circuit courts agree with this conclusion.

See Resnick v. United States Parole Comm'n, 835 F.2d

1297, 1301 (10th Cir. 1987); Vermouth v. Corrothers, 827

F.2d 599, 604 (9th Cir. 1987); Sheary v. United States

Parole Comm'n, 822 F.2d 556, 558 (5th Cir. 1987); Prater,

802 F.2d at 953-54; DiNapoli v. Northeast Regional Parole

Comm'n, 764 F.2d 143, 146-47 (2nd Cir.), cert. denied, 474

U.S. 1020 (1985); Dufresne v. Baer, 744 F.2d 1543, 1549-50

(11th Cir. 1984), cert. denied, 474 U.S. 817 (1985); Warren v.

United States Parole Comm'n, 659 F.2d 183, 193-97 (D.C.

Cir. 1981), cert. denied, 455 U.S. 950 (1982); Ruip v. United

States, 555 F.2d 1331, 1335-36 (6th Cir. 1977). Cf Francis

v. Fox, 838 F.2d 1147, 1150 (11th Cir. 1988) (a state work-

release regulation issued pursuant to a statutory grant of

discretionary power to the Corrections Department is not

an ex post facto “law”). But see Akins v. Snow, 922 F.2d

1558, 1561 (11th Cir. 1991), petition for cert. filed, 59

6 To say, as does Bailey, that before the MCB was abolished the MCB

had discretionary power and that now the OAR has no discretion, is

misleading. The paroling authority of Minnesota has always been

required to follow the promulgated regulations - the regulations

established by the MCB allowed discretion in the paroling decision,

while the current regulations allow no such discretion. At all times, the

paroling authority has been obligated to adhere to the internal

regulations promulgated pursuant to its discretionary authority, but at

all times the paroling authority also has been free to modify its internal

regulations. Indeed, the regulations issued by the Commissioner and

now in effect recognize that “policy changes established by the

commissioner” may affect an inmate's release date. Appellant's

Addendum II at A78.

A-11

U.S.L.W. 3783 (U.S. May 9, 1991) (No. 90-1730) (a state

paroling authority’s regulations promulgated pursuant to

a broad statutory grant of power to enact parole rules are

subject to the ex post facto prohibition); Royster v. Fauver,

775 F.2d 527, 534 (3rd Cir. 1985) (“This circuit, alone

among all others, maintains that parole regulations may

be laws for purposes of ex post facto analysis.”); Rodriguez

v. United States Parole Comm'n, 594 F.2d 170, 174 (7th

Cir. 1979) (holding a parole rule equivalent to a statute).

Because we hold that the Minnesota parole regulations

are not “laws” for ex post facto purposes, we affirm the

District Court’s order granting the defendants summary

judgment on Bailey’s ex post facto claims.’

Finally, Bailey argues that the District Court erred in

granting summary judgment on his claims that he was

denied due process by (1) defendants’ failure to provide

him with notice of and an opportunity to be heard at

meetings of the MCB at which his release date was

determined and reviewed, and (2) the MCB’s conditioning

its consideration of his parole on a future finding by the

staff that he is no longer a danger to the public in general

or to young females in particular. These claims were

carefully considered and rejected by the District Court. We

also carefully have considered them, find no material fact

issues to preclude summary judgment, and conclude, as

did the District Cour’, that these claims are without merit.

We are satisfied that, as the court determined, Minn. Stat.

§ 243.05 (1976) and the Parole Decision-Making Guidelines

adopted by the MCB did not give Bailey a constitutionally

protected liberty interest in parole, and that in any event

the process afforded him was constitutionally adequate.

’ Contrary to the dissent's assertion, the Commissioner's i

een

with postponing” Bailey's parole eligibility. See post at 18 n.1. The

action of the Commissioner does not extend in any way Bailey's parole

—e it = oe dh affirms wag earlier decision. Thus, the

pores Se a

do not violate Minn. Stat. § 243.05 ~~ y —_

A-12

To the extent that his second due process claim is one of

substantitive rather than procedural due process, it is

plain that a convicted criminal has no fundamental right

to consideration for early release; the doctrine of

substantitive due process therefore affords Bailey no

basis for relief. As these claims were properly disposed of

by the District Court, we affirm without further discussion.

Ill.

To summarize, in number 89-5219 we affirm the District

Court’s denial of Bailey’s application for writ of habeas

corpus. In number 89-5403, we affirm the District Court’s

grant of summary judgment for defendants on Bailey’s

various section 1983 claims.

Judge Stuart concurs except as to part II.C.1., as to

which he concurs in the result only.

LAY, Chief Judge, dissenting.

I respectfully dissent. However, I do so only as to the

majority’s disposition of the ex post facto issue.

The majority does not challenge Bailey’s assertion that

the new parole regulations are more onerous to him, and

clearly they are. Under the old regulations he was entitled

to annual review of his parole date from an agency that

had broad discretion to adjust that date. See Minn. Stat. §

243.05 (1972). Under the new regulations annual review is

abolished and the OAR can review and revise release

dates only to correct mathematical errors or in accordance

with overall changes in policy. Minn. Rules 2940.1500

(1989).

Thus, the key issue for ex post facto analysis is whether

Minn. Rules 2940.1500 constitutes a law. The majority

addresses the ex post facto effect of the federa/ parole

guidelines without giving proper consideration to the fact

that this case involves entirely distinct state parole

guidelines. The majority observes that a number of courts

have held that the federal parole guidelines do not

constitute a law for ex post facto purposes. See, e.g., Prater

v. United States Parole Comm., 802 F .2d 948, 953 (7th Cir.

1986) (en banc). These cases have limited relevance

A-13

because the federal guidelines are truly advisory -- the

parole commission may disregard the guidelines in the

exercise of its own discretion. See id. at 954. In contrast, it

is undisputed that the OAR is firmly bound by the

Minnesota regulations and has no discretion to adjust

release dates. See State ex rel. Independent School Dist.

No. 6 v. Johnson, 242 Minn. 539, 548, 65 N.W.2d 668, 673

(1954). Cases cited by the majority emphasize that the

existence of agency discretion to deviate from parole

regulations is a key issue in determining whether the

regulation constitutes a law for ex post facto purposes.

See, e.g., Smith v. United States Parole Comm., 875 F.2d

1361, 1367 (9th Cir. 1988). Under this analysis the

Minnesota regulations must be deemed law.

The majority seeks to circumvent this conclusion by

finding discretion in the agency’s power to revise its

parole regulations. The majority in essence argues that

the Commissioner of Corrections promulgated the

regulations implemented by the OAR, and because the

Commissioner (and previously the Minnesota Corrections

Board) always has had discretion to revise the regulations,

the entire parole scheme always has been subject to the

Commissioner's unbridled discretion. Under this view,

Bailey never had any entitlement to any of the parole

nrocedures in existence at the time of his offense.

This theory ignores the practical realities of Minnesota's

parole scheme. The only valid test for distinguishing a

law from a guideline lies in considering the discretion of

the agency invested with the delegated authority to affect

the rights of the prisoner. See Smith, 875 F.2d at 1367. In

this case that agency is the OAR, not the Commissioner.

The practical effect of the Commissioner’s new regulations

is that the agency that determines Bailey’s rights has

been deprived of the ability it once had to advance

Bailey’s release date. It makes no difference whether that

agency’s discretion was curtailed by legislative or

administrative action. Under the majority’s reasoning

every legislative act would be immune from ex post facto

challenge because the legislative body always has the

A-14

discretion to revise or repeal its actions. Under the

majority’s theory there are no true laws. Statutes passed

by the legislature must then also be discretionary because ©

the legislature may exercise its discretion to revise or

repeal. This cannot be the law.

Contrary to the majority’s assertions, the Minnesota

regulations are not mere “procedural aids” to the OAR,

nor can they be dismissed as “internal regulations.” See

ante at 11. These regulations have the force of law on the

OAR, the agency charged with actually making parole

decisions. Thus, Minnesota’s regulations have changed

the rules to the detriment of the prisoner in a most

tangible and concrete manner.

The majority’s assertion that “(t]he majority of circuit

courts agree with this conclusion,” ante at 12, is

misleading. None of the courts in the cases cited by the

majority considered or adopted the novel theory advanced

here. Indeed, all but one of the cited cases considered the

federal guidelines, which are truly discretionary in every

sense. The remaining case addressed an Alabama parole

scheme which also appears to have invested significant

discretion in the agency charged with making the parole

decisions. Francis v. Fox, 838 F.2d 1147, 1150 (11th Cir.

1988). The majority has not presented any support for its

premise that administrative regulations binding on the

agency charged with making parole decisions still may be

deemed discretionary for ex post facto purposes.

The Seventh Circuit in Prater acknowledged that “(t]he

rule against ex post facto laws applies to statutory

changes and also (we may assume) to changes in

administrative regulations that represent an exercise of

delegated legislative authority, as opposed to an

interpretion of legislation by an agency authorized to

execute, not make, laws.” 802 F.2d at 953-54. The majority

concedes that the regulations at issue here are not

interpretive but represent the Commissioner's exercise of

delegated legislative authority. See ante at 11 (“The

Minnesota parole regulations are procedural aids to the

body vested with the Cometepery authority granted by

the state legislature.”’). Thus, the majority goes far beyond

precedent in finding that administrative exercise of even

delegated legislative authority is not subject to the ex post

facto clause.

The majority ignores the relevant part of our own

decision in Yamamoto v. United States Parole Comm.,

794 F.2d 1295 (8th Cir. 1986), in which we stated:

We recognize that some aspects of the parole

process, while a matter of discretion, are such that a

change in the parole process could violate the ex post

facto clause ... . Adverse changes in the frequency

with which a prisoner may be considered for parole or

in the time at which a prisoner first becomes e/igib/e

for parole consideration may also violate the ex post

facto clause.

Id. at 1300-01 (emphasis in original); see also Warden v.

Marrero, 417 U.S. 653, 662-63 (1974) (stating that “a

repealer of parole eligibility previously available to

imprisoned offenders would clearly present the serious

question under the ex post facto clause . .. of whether it

imposed a greater or more severe punishment than was

prescribed by law at the time of the . . . offense”).

The ex post facto clause would have little effect if the

legislature could accomplish through administrative

action what it is prohibited from doing through legislation.

Thus, it is imperative that binding administrative action

be considered a legislative act for purposes of the ex post

facto clause. In light of the above analysis I would find that

the Minnesota regulations violate the ex post facto clause,

A-16

and would order the state to provide Bailey parole review

consideration pursuant to the regulations in place at time

he committed his offense.’

A true cop»

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.

' t also appears that enforcement of a new parole regulation that had

the effect of postponing Bailey's eligibility for parole would exceed the

Commissioner's statutory delegation of authority under Minn. Stat. §

243.05 subd. 2 (d) (1988). The statute provides that “any new rule or

change of rule of policy adopted by the commissioner which has the

effect of postponing eligibility for parole has prospective effect only.

Because the new regulations effectively eliminate Bailey's eligibility

for parole, the regulations must be deemed to postpone his eligibility

for parole. Thus, the regulations are invalid as applied to Bailey, not

only on ex post facto grounds, but on the state law ground that they

exceed the Commissioner's delegated authority.

A-17

United States Court of Appeals

For The Lighth Circuit

No. 89-5219MN

Clark A. Bailey,

Appellant,

Sandra Gardebring,

Commissioner of Human

Services, and State of

Minnesota,

Appeai from the United

States District Court for

the District of Minnesota.

Appellees.

No. 89-5403MN

Clark Albert Bailey,

Appellant,

HHHAHHHHHRHHRHRHHEHE

Arthur E. Noot, Orville

Pung, Charles G.

Sheppard, Leslie R. Green,

William F. McCrae, Bruce

M. Beltt, Richard A.

Alstad, James Bruton,

Henry Greencrow, and

Dorothy Skwiera,

Appellees.

Appellant’s pro se petition for rehearing with suggestion

for rehearing en banc has been considered by the court

and is denied by reason of the lack of a majority of the

active judges voting to rehear the case en banc. Chief

Judge Lay, Judge McMillian and Judge Arnold voted to

grant rehearing on the ex post facto issue only. The

petition for rehearing by the panel is also ordered denied.

HHAHHAHHHHHHHHHHHHHE

A-18

The petition for rehearing filed by counsel for the

appellant has been considered by the court and is denied.

October 11, 1991

Order Entered at the Direction of the Court.

Clerk, U.S. Court of Appeals, Eighth Circuit.

A-19

United States District Court

District of Minnesota

Fourth Division

Clark Albert Bailey,

Plaintiff,

Arthur E. Noot, Orville Pung, Civil No. 4-85-1245

Charles G. Sheppard, Leslie R.

Green, William F. McRae, Bruce

M. Beltt, Richard A. Alstad, ORDER

James Bruton, Henry Greencrow,

and Dorothy Skwiera,

Defendants.

Brian B. O’Neill, Esq. James D. O’Connor, Esq. and

Alan M. Anderson, Esq., Faegre & Benson, 2200

Norwest Center, 90 South Seventh Street,

Minneapolis, MN 55402, for plaintiff Clark Albert

Bailey.

Mary J. Theisen, Special Assistant Attorney General,

1100 Bremer Tower, Seventh Place and Minnesota

Street, St. Paul, MN 55101, for defendants Department

of Corrections.

Scott R. Strand, Assistant Attorney General, Suite

200, 525 Park Street, St. Paul, MN 55103, for

defendants Gardebring, Sheppard and Beltt.

This matter is before the Court on plaintiff Clark

Bailey’s objections to two Report and Recommendations

of Magistrate Floyd E. Boline dated March 23, 1988 and

July 29, 1988. Bailey objects to both Report and

Recommendations in their entirety. Bailey’s objections

raise issues under the Due Process, Cruel and Unusual

Punishment, and Ex-post Facto Clauses of the United

States Constitution. Applying a de novo standard of

A-20

review, 28 U.S.C. §636, the Court adopts the magistrate’s

Report and Recommendations to the extent described

below.

* * *

The full Minnesota Corrections Board (“MCB”) met to

set a target release date for parole for Bailey on May 6,

1981. (Alstad Depo., Exh. 6). Because of the severity of

Bailey’s crimes, coupled with his extended history of

sexual harassment of young females, the MCB removed

his case from the parole guidelines matrix and set his

target release date at expiration of his sentence. (Alstad

Depo., Exhs. 6 and 7). The MCB informed Bailey of their

decision and the reasons for it, by letter dated May 12,

1981. (Alstad Depo., Exh. 7.) The letter concluded with the

statement that “(t]he [MCB] will not consider any form of

release prior to the expiration of your sentence unless

psychiatric, psychological, and correctional staff can

- certify that you are no longer a danger to the public in

general and/or young females specificially.” Jd. On

September 11, 1981, two members of the MCB met with

Bailey to discuss the May 6, 1981 decision. (Alstad Depo.,

Exh. 9). The two members determined that the May 6,

1981 decision was appropriate, but corrected a designation

in the May 6, 1981 remarks, presumably after being

presented with contrary evidence by Bailey, which stated

that the Iowa conviction was for first degree murder. The

correct designation was noted to be second degree murder

with a 0-40 year sentence to be served concurrent with

Bailey’s Minnesota sentence. /d.

The Minnesota legislature abolished the MCB on June

30, 1982. Minn. Laws 1981, Ch. 360, §4. The MCB conducted

another review of Bailey’s case prior to going out of

existence. The MCB decided to keep Bailey’s target

release date at expiration of his sentence. Bailey was

neither provided notice nor an opportunity to appear at

this review.

The authority to parole previously given to the MCB

was given to the commissioner of corrections in 1981. See

A-21

Minn. Stat. § 243.05 (1988). The commissioner was also

given the authority to adopt rules governing the procedure

for granting parole. /d. subd. 2. The commissioner adopted

such rules and regulations. See3 Minn. R. §§2490.0100, et

seq. (1987). The regulations established an Office of Adult

Release (“OAR”). The commissioner delegated his

authority to grant parole to the OAR.

One of the rules provides that “{aJll release dates

established by the Minnesota Department of Corrections

will be left in full force and effect by the commissioner.”

§2940. 1500, subp. 2 (referred to below as §1500). Subsequent

to this rule going into effect, Bailey wrote the commissioner

of corrections and the executive officer of the OAR a few

letters inquiring as to his eligibility for parole. (Affidavit

of Clark A. Bailey, Exhs. A, B, C, and D). Both responded

that pursuant to §1500, Bailey’s release date can neither

be extended nor reduced. (Affidavit of Clark A. Bailey,

Exhs. B, C, and D). Both stated that §1500 has the force

and effect of law. J/d., Exhs. C and D.

Bailey brought this civil rights action under 42 U.S.C.

§1983 on December 20, 1982. His Second Amended

Complaint alleges violations of (1) his right to treatment

under the Due Process and Cruel and Unusual Punishment

Clauses of the United States Constitution by the DHS

defendants Sandra Gardebring, Charles Sheppard and

Bruce Beltt and the DOC defendants Orville Pung (the

commissioner of the DOC) and William McRae (Counts I

and II); (2) his right to notice and an opportunity to be

heard with respect to the MCB’s decisions on parole under

the Due Process Clause (Counts III and IV), and (3) his

rights to not have the punishment for his crime increased

under the Ex Post Facto Clause (Count V).

4. That summary judgment should be granted

dismissing Count V of plaintiff's Second Amended

Complaint. The Court adopts the magistrate’s discussion

and conclusions regarding Count V and adds the following

as an additional ground for granting summary judgment

A-22

in this case.

The United States Constitution prohibits states from

passing ex post fact laws. See Art. I, §10 cl.l. A law

violates the Ex Post Facto Clause if it applies retrospec-

tively to events occurring before its enactment and if it is

more onerous than the law in effect on the date of the

offense. Miller v. Florida, 482 U.S. 423, 430 (1987);

Yamamoto v. United States Parole Comm'n, 794 F.2d

1295, 1297 (8th Cir. 1986). Central to the ex post facto

prohibition is a concern for “the lack of fair notice and

governmental restraint when the legislature increases

punishment beyond what was prescribed when the crime

was consummated,” Miller v. Florida, 482 U.S. at 430

(quoting Weaver v. Graham, 450 U.S. 24, 30 (1981)).

The DOC defendants contend, and the magistrate

concluded, that §1500 is not a law for purposes of the Ex

Post Facto Clause. No case has specifically addressed this

issue. Numerous cases, however, have resolved the closely

related question of whether certain portions of the federal

parole guidelines are laws for purposes of the Ex Post

Facto Clause. See Prater v. United States Parole Comm'n,

802 F.2d 948, 952-954 (7th Cir. 1986) (en banc); /nglese v.

United States Parole Comm'n, 768 F.2d 932 (7th Cir.

1985); DiNapoli v. Northeast Reg. Parole Comm‘n, 764

F.2d 143 (2d Cir. 1985); United States ex rel. Forman v.

McCall, 726 F.2d 1156 (3rd Cir. 1985); Dufresne v. Baer,

744 F.2d 1543 (11th Cir. 1984); Rodriguez v. United States

Parole Comm n, 594 F.2d 170 (7th Cir. 1979); Rup v.

United States, 555 F.2d 1331 (6th Cir. 1977). The majority

of these case have held that certain portions of the federal

parole guidelines are not laws for purposes of the ex post

facto proscription. Prater, 802 F.2d at 952-954; Inglese,

768 F.2d at 935-36; DiNapoli, 764 F.2d at 146; Dufresne,

744 F.2d at 1549-50; Ruip, 555 F.2d at 1335-36. Two of these

cases, however, have held that other portions of the

federal parole guidelines are or may be laws for purposes

of the Ex Post Facto Clause. Rodriquez, 594 F.2d at 173-74;

United States ex rel. Forman v. McCall, 776 F.2d at 1163.

In Prater, the Seventh Circuit Court of Appeals sitting en

A-23

banc recognized the divergence in these opinions and

explained it by enunciating the following principles:

[5, 6] The rule against ex post facto laws applies to

statutory changes and also (we may assume) to

changes in administrative regulations that represent

an exercise of delegated legislative authority, as

opposed to an interpretation of legislation by an

agency authorized to execute, not make, laws. See

e.q., Rodriguez v. United States Parole Comm'n, 594

F.2d 170, 173-74 (7th Cir. 1979); United States ex rel.

Graham v. United States Parole Comm'n, 629 F.2d

1040, 1043 (5th Cir. 1980). The legislature should not

be allowed to do indirectly what it is forbidden to do

directly. Thus if Congress authorizes an agency to

make rules governing procedure before the agency

(as in section 713(a) of the Civil Rights Act of 1964, 42

U.S.C. §2000e-12(a)), and the agency does so, the

rules are as if made by Congress; Congress could

have made them, if it had had time. But if the Justice

Department issues guidelines for the enforcement of

a federal statute that is administers (as it did in the

1984 Department of Justice Merger Guidelines, for

example), this is the performance of an interpretive

function that every law enforcement agency has; it is

not the enactment of a law. See General Electric Co.

v. Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 410-11, 50

L. Ed.2d 343 (1976); 2 Davis, Administrative Law

Treatise §7:8 92d ed. 1979). If the law is unchanged

and no legislative regulations are promulgated, a

mere change in enforcement methods, priorities, or

policies, written or unwritten-a change within the

scope of the executive branch’s discretion in enforcing

the laws passed by Congress-does not activate the

prohibition against ex post facto laws.

Prater v. United States Parole Comm'n, 802 F .2d at 953-54

(emphasis added). The court then proceeded to hold that

the particular portions of the federal parole guidelines at

issue were intepretive regulations rather than an exercise

A-24

of delegated legislative authority, such as the regulation

involved in the Rodriguez case, see Rodriguez, 594 F.2d

at 171-174, where the regulations were procedural and

binding. Prater 802 F.2d at 954. The regulations at issue

in Prater were “merely guides, and not laws: guides may

be discarded where circumstances require; laws may not.”

Id. (quoting Inglese v. United States Parole Comm‘n, 768

F.2d 932, 936 (7th Cir. 1985)).

The Eighth Circuit Court of Appeals has declined to rule

on the question of whether the federal parole guidelines

are laws for purposes of Ex Post Facto Clause anaylsis.

Yamamoto, 794 F.2d 1295, 1299 (1986). In Yamamoto, the

Eighth Circuit noted that is was “favorably impressed”

with the cases holding that the guidelines are not laws. /d.

The Court also stated, however, that:

[O]ur decision does not rest on the fact that the

guidelines were promulgated by an agency rather

than by Congress itself. Clearly, Congress may not,

hy delegation, escape constitutional limitations on

its power .... For example, restrospective application

of a statute or rule altering the method for computing

“gain time for good conduct” to an inmate who

committed a crime before the enactment of the

alteration clearly violates the ex post facto clause.

Id. at 1300 (emphasis added).

While the precise contours of the case law governing

what type of parole regulations will be deemed “laws”

subject to the ex post facto proscription appear to be still

developing, it is clear that before any regulation will be

deemed such a “law”, it must be a regulation promulgated

pursuant to “delegated legislative authority.” Prater, 802

F.2d at 953-54; Yamamoto, 794 F.2d at 1300.

The Minnesota Statute which governs the paroling

authority in the instant case provides in part that:

[t]he commissioner of corrections may adopt rules in

accordance with Chapter 14, the Administrative

Procedure Act, governing the procedures for granting

of conditional release - a. discharge. The rules

may provide for .. . other matters necessary to

implement the duties conferred by law upon the

commissioner with respect to conditional release and

discharge of persons.

Minnesota Statutes §243.05, subd. 2 (1988). The statute

further provides:

[t]he commissioner of corrections may parole any

person sentenced to confinement in any state

correctional facility for adults under the control of the

commissioner of corrections, provided that:

(d) any new rule or policy or change of rule or policy

adopted by the commissioner of corrections which

has the effect of postponing eligibility for parole has

prospective effect only and applies only with respect

to persons committing offenses after the effectivef

date of the new rule or policy or change.

Id., subd. 1(d). Pursuant to the limitation provided in

subd. 1(d), any rule adopted by the commissioner which

had the effect of retrospectively postponing a prisoner's

eligibility for parole would be invalid because it would be a

rule which exceeded the commissioner’s authority to

grant or deny parole and also to make rules to carry out

that authority. See Minn. Stat. §14.45 (1988) (“the court

shall declare [a] rule invalid if it exceeds the statutory

authority of the agency”). Since any such rule would be

invalid as having exceeded the commissioner’s authority,

it could therefore not be a “law” subject to the ex post facto

proscription. The Ex Post Facto Clause is directed to the

legislative branch of government. Where an administra-

tive agency exceeds its rulemaking authority in a manner

which impairs the legal rights of a prisoner, the proper

remedy can be obtained through an action for a

determination of the validity of the rule, see Minn. Stat.

§14.44 (“Determination of Validity of Rules”), not an

action under the Ex Post Facto Clause.

Plaintiff contends that 3 Minn. R. §2940.1500, subp. 2

(1987), which provides in part that “{a]ll release dates

A-26

established by the Minnesota Department of Corrections

will be left in full force and effect by the commissioner’’,

and which was promulgated by the commissioner of

corrections pursuant to the Minnesota Administrative

Procedure Act, “has the ‘effect’ of postponing (or

eliminating) Bailey’s eligibility for parole . . . [and]

violates §243.05, subd. 1(d).” (Plaintiff's Memorandum in

Support of His Objections to Magistrate Boline’s Report

and Recommendation of March 23, 1988 at 16-17).

This contention proves fatal to plaintiff's claim under

the Ex Post Facto Clause. If the Court adopts plaintiff's

contention, which it must in order for plaintiff to prove the

essential element under the Ex Post Facto Clause that the

new law has a more onerous effect upon him, see

Yamamoto, 794 F.2d at 1297, then the Court must also

hold that §1500 is not a “law” for purposes of the Ex Post

Facto Clause because as it applies to Bailey it exceeds the

rulemaking authority granted to the commissioner by

violating Minn. Stat. §243.05, subd. 1(d). If plaintiff

changes his position and attempts to show that §1500

does not violate subd. 1(d), and thus perhaps may be

construed as a “law” properly created pursuant to

legislative authority, then he will have failed to show that

§1500 creates a law which has a more onerous effect upon

him. In either case, plaintiff's ex post fact claims must be

Accordingly, based upon the foregoing, IT IS HEREBY

ORDERED that summary judgment is granted in favor of

defendants on Counts I-V of plaintiff's Second Amended

Complaint and this case is hereby dismissed with

prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: June 27, 1989

David S. Doty, Judge

United States District Court

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Minn. Stat. §14.38. Effect of adoption of rules

Subdivision 1. Original rules. Every rule, regardless

of whether it might be known as a substantitive,

procedural, or interpretive rule, which is filed in the office

of the secretary of state as provided in sections 14.05 to

14.36 shall have the force and effect of law five working

days after its notice of adoption is published in the State

later date is specified in the rule. The secretary of state

shall keep a permanent record of rules filed with that

office open to public inspection.

Subd. 2. Retroactive application. Every existing

rule, regardless of whether it might be known as

substantitive, procedural, or interpretive rule, shall have

the force and effect of law retroactive to the date on which

the rule became effective if:

(a) the rule was adopted in compliance with the

provisions of the administrative procedure act in effect at

the time the rule was adopted;

(b) the rule was approved by the attorney general before

becoming effective; and

adopt the rule.

Minn. Stat. §243.05 (1971) (repealed) Commission;

powers, limitations

The state adult corrections commission may parole any

person sentenced to confinement in the state prison, the

state reformatory, or the Minnesota correction institute

for women, ....

Minn. Stat. §243.05 (1989) Commissioner of

corrections; powers, limitations

Subdivision 1. Conditional release. The commissioner

of corrections may parole any person sentenced to

confinement in any state correctional facility for adults

under the control of the commissioner of corrections, .. . .

Subd. 2. Rules. The commissioner of corrections may

adopt rules in accordance with chapter 14, the

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Administrative Procedure Act, governing the procedures

for granting of conditional release and final discharge... ..

3 Minn. Rules §2940.'500, subp. 2

... Subp. 2. Review of release dates. Incarcerated

inmates with indeterminate sentences governing their

release dates which were established prior to July 1, 1982,

shall be handled as follows in items A to C.

A. All release dates established by the Minnesota

corrections board will be left in full force and effect by the

B. Special reviews for the purpose of modifying release

dates established by the Minnesota corrections board

shall be considered by the executive officer of adult release

for the following reasons:

(1) correcting mathematical, data entry, or

computational erros; ) _ od

(2) sentence change caused by modification in the

computation of the “Minnesota Corrections Board Parole

Decision-Making Guidelines”; and a

(3) policy changes established by the commissioner

which affect the term of imprisonment. ...

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MINNESOTA CORRECTIONS BOARD:

ADULT AND YOUTHFUL OFFENDER PAROLE

POLICIES AND PROCEDURES (JULY 1977)

INTRODUCTION

It is the purpose of the following to establish the rules,

regulations, and policies which will govern the operation

of the Minnesota Corrections Board in discharging its

responsibilities relative to the granting of parole, the

revocation of parole, and such other responsibilities as

defined by law.

7-101.0 Board Administrative Rules

13 Frequency of Hearings: The Board shall conduct

hearings every month at the State prison, the State

Reformatory for Men, the Minnesota Correctional

Institution for Women, and the Minnesota

Metropolitan Training Center. Hearings at the St.

Peter State Security Hospital will be held as

required. Insofar as possible, inmates will be given

at least thirty days notice of an impending hearing

affecting them.

14 Initial Hearing: At all adult institutions, inmates

shall have an initial hearing within the first two

months of incarceration.

15 Length of Continuance: No continuance shall be

for a period longer than twelve months. All

continuances of less than one year will be set on for

hearing, insofar as possible, before the same

_ members who granted the continuance.

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7-101.19 Early Review - Special Hearings

a. An inmate may apply for any early review at any

time during his continuance unless at the outset of

that continuance the Board has specifically

indicated that an early review will not be

entertained. ...

- . *

7-104.0 Parole Decision-Making Guidelines

* * *

.2 Determining Time to be Served Prior to Parole:

a. Assigning a target release date:

After implementation of these guidelines, each

inmate will be assigned a target release date,

either at the inmate’s admission hearing or at

the inmate’s next annual review... .

> * *

7-104.4 Types of Hearings Under These Guidelines

There are three types of hearings under these

guidelines: initial hearing (at which the target

release date is assigned), interim annual review,

and re-entry hearings.

a. Intial hearings

(1) Purpose of hearing:

The purpose of the initial hearing is to ensure

that the Board has complete and accurate

information on each case in order to assign

an appropriate target release date.

7-104.4(b) Interim Annual Reviews

Annual reviews between the initial hearing and

the re-entry hearing will be non-appearance

reviews. ...

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