Opposition Brief — Bailey v. Noot

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QUESTIONS PRESENTED

Does a change in state parole guidelines, under which

the agency retains discretion in its decision-making,

and which does not increase the quantum of the

prisoner’s punishment, violate the ex post facto

clause of the United States Constitution?

Does a dangerous criminal offender, who is serving a

criminal sentence, and is also civilly committed as a

psychopathic personality, possess a constitutional

right under the due process clause of the fourteenth

amendment to the United States Constitution to treat

ment for his psychopathic personality condition?

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..........----+eseeeeeeee iv

STATEMENT OF THE CASE...........6000eeeeeees 1

REASONS FOR DENYING THE PETITION......... 6

I.

II.

THE PETITION SHOULD BE DENIED AS TO

PETITIONER’S EX POST FACTO CLAIM

BECAUSE THE OVERWHELMING WEIGHT OF

AUTHORITY SUPPORTS THE MAJORITY DECI-

SION BELOW THAT THE CHALLENGED

CHANGE IN MINNESOTA’S PAROLE RULES

DOES NOT VIOLATE THE EX POST FACTO

CLALIIB oc ccccccccccassecueeseunneeennenees

A. The Minnesota Rules Are Not Laws For Pur-

poses Of The Ex Post Facto Clause........

B. Even If The Minnesota Rules Are Laws, They

Do Not Substantially Disadvantage Peti-

tioner And Therefore Do Not Violate The Ex

Post Facto Clewse 2... ccccccsccccccccccsers

THE COURT SHOULD DENY THE PETITION

AS TO PETITIONER’S CLAIM OF A RIGHT TO

TREATMENT UNDER THE FOURTEENTH

AMENDMENT BECAUSE THERE IS NO SPLIT

IN THE CIRCUITS AND BECAUSE OTHER

GROUNDS SUPPORT THE DECISIONS OF THE

COURTS BELOW .......cccccccccsccccvsssceeses

A. The Eighth Circuit Reasonably Determined

That Petitioner Has No Fourteenth Amend-

ment Right To Treatment, And There Is No

Split In Circuits On This Issue........

B. DHS Defendants Are Qualifiedly Immune

Pent TIRED oaccccceccecccescvcscccesese

10

14

15

@ e

TABLE OF CONTENTS - Continued

Page

C. DHS Defendants Are Entitled To Judgment

As A Matter Of Law.......... 66... eee uues 18

GI ows cc ccccccccccccccccnccccccescccecs 19

iv

TABLE OF AUTHORITIES

Page

Feperat Decisions: .

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

denied, __ US. __, 111 S.Ct. 291 (1991)...... 12, 13

Anderson v. Creighton, 438 U.S. 635 (1987).......... 17

Bailey v. Noot, 940 F.2d 1150 (8th Cir. 1991) .... passim

Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977) ..... 16

Burnside v. White, 760 F.2d 217 (8th Cir.), cert.

denied, 474 U.S. 1022 (1985)... ...... 6. ee cece eeees 12

DiNapoli v. Northeast nal Parole Comm'n,

764 F.2d 143 (2d Cir.), cert. denied, 474 U.S. 1020

SED. cccccsnccnccesescesdsesiccdscccesencescece 7,8

Dufresne v. Baer, 744 F.2d 1543 (11th Cir. 1984),

cert. denied, 474 U.S. 817 (1985)... .......--.- 665s: 7

Eckerhart v. Hensely, 475 F. Supp. 908 (W.D. Mo.

SS eearrrrrrrrrr tet 16

Harlow v. Fitzgerald, 457 U.S. 800 (1982)............ 17

Knight v. Mills, 836 F.2d 659 (ist Cir. 1987)......... 17

Maggard v. Wyrick, 800 F.2d 195 (8th Cir.), cert

denied, 479 U.S. 1068 (1986) ..........-.. 6 eee eee 12

Miller v. Florida, 482 U.S. 423 (1987).............-. 7,9

O’Connor v. Donaldson, 422 U.S. 563 (1975)...... 15, 17

Prater v. United States Parole Comm'n, 802 F.2d

Bn, .. ccc ci ccbccoctdesscsestoces 7,8

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

ff, Lo , errr rrr 7

Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1986) .... 16

¢ 6

v

TABLE OF AUTHORITIES - Continued

Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977)

Rush v. Petrovsky, 756 F.2d 675 (8th Cir. 1985)..

Sheary v. United States Parole Comm'n, 822 F.2d

556 (Sth Cir. 1987)... ......---- eee cece e eens

Smart v. Simonson, 867 F.2d 429 (7th Cir. 1989).

United States ex rel. Forman v. McCall, 709 F.2d

852 (3d Cir. 1983), cert. denied, 476 U.S. 1119

rrr

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

Warren v. United States Parole Comm'n, 659 F.2d

183 (D.C. Cir. 1981), cert. denied, 455 US. 950 -

PD oo cocccocdccourscescccanecssecececussees

Weaver v. Graham, 450 US. 24 (1981).........-.

Wyatt v. Aderholt, 503 F.2d 1305 (Sth Cir. 1974).

Yamamoto v. United States Parole Comm'n, 794

F.2d 1295 (8th Cir. 1986)...... 2... - eee eeeees

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

Muwnesota DEcIsIONs:

Bailey v. Noot, 324 N.W.2d 164 (Minn. 1982)....

State ex rel. Taylor v. Schoen, 273 N.W.2d 612

(halen. 1976). ... 2... eee c cc ececcececececeeees

vi

TABLE OF AUTHORITIES - Continued

Page

FEDERAL CONSTITUTION:

U.S. Const. art. L§ OS & reer eer passim

EC ocavccoccsconncsttesedtees passim

Feperat STATUTEs:

eae ae 5

Minnesota Statutes:

a er Cec nescienesesecsess cseeeces 8

Act of June 1, 1981, ch. 360, § 4, 1981 Minn. Laws

DP bshh dhouteabeduaubedeuleaedsecteesocececess 3

Minn. Stat. § 15.0411, subd. 2 (1980).............. 4,11

ES OD ee 6

NE 1

Minnesota Ruves aND REGULATIONS:

hy CG, SD Gc ccc ccccccccccscccccees 3

Minn. Rules pt. 2940.1500, subp. 2 (1991) .......... 3,9

Minn. Rules pt. 2940.1500, subp. 2A (1991)........... 3

Minn. Rules pt. 2940.1500, subp. 2B(3) (1991)......... 4

Minn. Corr. Bd. R. 7-104.4 (1977)........... 00.0.0... 4

ee

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STATEMENT OF THE CASE

In 1977, petitioner committed several crimes in Min-

nesota and lowa including the kidnapping, rape and mur-

der of a 13 year old girl. Petitioner pled guilty in

Minnesota to criminal sexual conduct in the first degree

and kidnapping, and was sentenced to concurrent 20 and

40 year prison terms. Shortly thereafter, petitioner was

also committed to the Minnesota Security Hospital

(“MSH”) as a psychopathic personality pursuant to Minn.

Stat. § 526.09 (1976). Bailey v. Noot, 940 F.2d 1150, 1152

(8th Cir. 1991). See also Bailey v. Noot, 324 N.W.2d 164, 165

(Minn. 1982).

Petitioner resided at MSH from 1977 to 1981. Peti-

tioner was evaluated by psychiatrists and psychologists

periodically throughout his stay at MSH. These officials’

reports on petitioner uniformly concluded the following:

(1) petitioner was not genuinely interested in reform but

rather was most interested in living in a setting which

provided him with freedom and comfort; (2) petitioner

was extremely dangerous - a maximum security risk to

both the public and patients at MSH; and (3) there was

little, if any, treatment advantage to keeping petitioner at

MSH. Department of Human Services 8th Cir. Appendix

at A-25 to 84 (“DHS App.”). During petitioner's stay at

MSH, the staff periodically developed treatment plans for

him and the appropriate treatment teams reviewed those

plans with some frequency. In conjunction with these

plans, petitioner was offered numerous opportunities to

participate in treatment programs, including sex educa-

tion and awareness classes, chemical dependency group

programs, general group counseling sessions, education

programs, and vocational training programs. Petitioner

1

often refused to participate in these programs. See Bailey

v. Noot, 940 F.2d at 1152. DHS App. at A-67 to 191.!

In 1978, respondent Sheppard, then Medical Director

at MSH, petitioned the Minnesota Department of Public

Welfare (the predecessor of the Minnesota Department of

Human Services) for Bailey to be transferred to the Min-

nesota Department of Corrections (“DOC”). Sheppard

submitted the petition because of his concerns about

security and because he concluded that Bailey would

benefit more from treatment at MSH at the end of his

criminal sentence. After lengthy legal proceedings, Bailey

was ultimately transferred to DOC in 1981. Bailey v. Noot,

940 F.2d at 1152. DHS App. at A-32, 33.7

In 1981, the Minnesota Corrections Board (“MCB”),

then the paroling authority in Minnesota, conducted an

' Petitioner cites certain deposition testimony of respon-

dent Sheppard in his effort to show that he did not receive

treatment while at MSH. Pet. at 7. However, petitioner lifts the

testimony out of context. Petitioner’s counsel’s questions were

clearly directed at petitioner's request to participate in a par-

ticular treatment program, MSH’s Intensive Treatment Pro-

gram for Sexual Aggressiveness. See, ¢.g., Bailey's 8th Cir. App.

at A-146; DHS App. at A-13 to 14.

? Bailey erroneously states that MSH petitioned for the

transfer after Bailey's appearance before the Hospital Review

Board. Pet. at 7. Instead, Bailey complained to the Board

shortly after Sheppard’s submission of the transfer

DHS App. at A-32. In addition, Bailey’s characterization of the

Review Board's action as “hearing evidence from both

sides,” is somewhat misleading. Pet. at 7. The Board heard

® e

initial review of petitioner’s case as a result of his trans-

fer. DOC Dist. Ct. App., Alstad Dep. at 37-40; Alstad Dep.

Ex. 5. Because of the extreme severity of petitioner's

offense and the danger which he posed to the public, the

MCB decided to remove petitioner’s case from the parole

release date matrix and to assign him to serve to the

expiration of his sentence.? DOC 8th Cir. App. at A-68 to

74. Petitioner was informed that “the Minnesota Correc-

tions Board will not consider any form of release prior to

the expiration of sentence unless psychiatric, psychologi-

cal and correctional staff can certify that you are no

longer a danger to the public in general and/or young

females specifically.” DOC 8th Cir. App. at A-73 to 74.

Subsequently, two members of the MCB met with Bailey

to discuss his response to the MCB’s decision. The

reviewers agreed with the decision of the full MCB. DOC

8th Cir. App. at A-76; DOC Dist. Ct. App., Alstad Dep. at

59-60.

The Minnesota Legislature abolished the MCB in

1982 and transferred paroling authority to the Minnesota

Commissioner of Corrections. Act of June 1, 1981, ch. 360,

§ 4, 1981 Minn. Laws 2337. Pursuant to statutory author-

ity, the Commissioner promulgated rules concerning the

parole of inmates. Minn. Rules ch. 2940 (1991). Those

rules provide that decisions made regarding parole by the

MCB “will be left in full force and effect by the Commis-

sioner.” Minn. Rues pt. 2940.1500, subp. 2A (1991).* This

3 For an explanation of the purpose and operation of the

matrix and the target release dates, see State ex rel. Taylor v.

Schoen, 273 N.W.2d 612 (Minn. 1978).

4 A complete copy of Minn. Rules pt. 2940.1500, subp. 2

appears in the appendix at A-1.

® «

rule also provides that a special review may be held to

modify a release date established by the MCB if the

Commissioner makes a “policy change” regarding the

term of imprisonment of such individuals. Minn. Rules

pt. 2940.1500, subp. 2B(3) (1991). To date, the Commis-

sioner has left the decision by the MCB concerning peti-

tioner, that he serve to expiration, in full force and effect.

At the time of petitioner’s transfer to DOC, the MCB

guidelines were not rules promulgated pursuant to the

Minnesota Administrative Procedures Act (“APA”).5 The

guidelines merely set forth the procedures and policies

for the exercise of the MCB’s wide discretion. See State ex

rel. Taylor v. Schoen, 273 N.W.2d 612, 618 (Minn. 1978). See

also DOC Dist. Ct. App., Green Dep. at 5.

The MCB guidelines provided for an annual review

of an inmate’s release date. Minn. Corr. Bd. R. 7-104.4(b)

(1977). This review was not a hearing for reconsideration

of an inmate’s parole. It consisted only of an “on paper”

review by the MCB of brief materials prepared by the

inmate’s caseworker. The MCB merely reviewed the sum-

mary prepared by the caseworker and continued the

inmate’s parole release date assignment. DOC Dist. Ct.

App., Green Dep. at 10. In fact, the MCB rarely changed a

parole release date after the date was initially set. Id. at 7.

° The Minnesota APA specifically exempted the MCB from

ne requirements. Minn. Stat. § 15.0411, subd. 2

1980).

* A complete copy of Minn. Corr. Bd. R. 7-104.4(b) appears

in the appendix at A-2.

The MCB made it very clear that Bailey would serve to

expiration of his sentence. Id. at 40.7

In 1982, Bailey initiated this litigation pursuant to 42

U.S.C. § 1983 claiming, among other things, that (1) the

DOC, in changing the parole guidelines, had violated the

ex post facto clause; and (2) that the Department of

Human Services (“DHS”) defendants had denied Bailey

treatment for his psychopathic personality commitment

and thus violated the fourteenth amendment. Following

cross-motions for summary judgment, the district court

entered judgment for respondents. The court adopted the

magistrate’s report and recommendation, holding that

the Minnesota parole guidelines in question were not

laws for purposes of the ex post facto clause and that the

challenged changes to the guidelines did not add to the

quantum of appellant’s punishment and thus did not

violate the ex post facto clause. Bailey’s 8th Cir. Brief at

A-6 to 10, 68 to 74. Regarding plaintiff's fourteenth

amendment claim, the court also adopted the magistrate’s

report and recommendation, holding that DHS defen-

dants were qualifiedly immune from damages because

the alleged right to treatment was not clearly established

and that petitioner was not entitled to declaratory or

injunctive relief because DHS defendants’ actions had

7 Petitioner states that he received an annual review from

the MCB. Pet. at 4. However, the record indicates that the MCB

only reviewed petitioner’s status twice: (1) the MCB conducted

an initial review as a result of Bailey’s transfer from MSH in

May, 1981; and (2) in September, 1981, two MCB members met

with Bailey to discuss his response to the board’s determina-

tion. DOC 8th Cir. App. at A-73 to 76. As noted above, the

MCB was abolished effective June 30, 1982.

® bd

satisfied his claimed right to treatment. Bailey’s 8th Cir.

App. at A-27 to 36, 65 to 67.

On appeal, the United States Court of Appeals for the

Eighth Circuit affirmed and subsequently denied Bailey’s

petition for rehearing and suggestion for rehearing en

banc.

REASONS FOR DENYING THE PETITION

I. THE PETITION SHOULD BE DENIED AS TO PETI-

TIONER’S EX POST FACTO CLAIM BECAUSE THE

OVERWHELMING WEIGHT OF AUTHORITY SUP-

PORTS THE MAJORITY DECISION BELOW THAT

THE CHALLENGED CHANGE IN MINNESOTA’S

PAROLE RULES DOES NOT VIOLATE THE EX

POST FACTO CLAUSE.

Petitioner attempts to create important unresolved

issues of constitutional law and splits in the circuits in

support of his petition. However, in his effort, petitioner

mischaracterizes the importance of the issue presented

and the current state of the law. The decision below was

well founded on the relevant case law from this Court

and the courts of appeal, and the petition should there-

fore be denied.

A. The Minnesota Rules Are Not Laws For Pur-

poses Of The Ex Post Facto Clause.

The threshold question in ex post facto analysis is

whether the challenged change constitutes a “law” for ex

post facto purposes. Weaver v. Graham, 450 U.S. 24, 29

(1981). On this question, the majority below correctly

concluded that the challenged DOC rules are not laws.

The majority below reached this conclusion by rely-

ing on the numerous cases from other circuits holding

that the federal parole guidelines are not laws. 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 v. United States Parole Comm'n,

802 F.2d 948, 953 (7th Cir. 1986) (en banc); DiNapoli v.

Northeast Regional Parole Comm'n, 764 F.2d 143, 146-47 (2d

Cir.), cert. denied, 474 U.S. 1020 (1985); Dufresne v. Baer, 744

F.2d 1543, 1549-90 (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). The Eighth Circuit has favorably recognized

this “impressive line of authority,” Yamamoto v. United

States Parole Comm'n, 794 F.2d 1295, 1297 (8th Cir. 1986),

but it has not yet squarely addressed the issue. Only the

Third Circuit Court of Appeals has equivocated as to the

status of the federal guidelines, finding that the federal

regulations may be laws for purposes of ex post facto

analysis. United States ex rel. Forman v. McCall, 709 F.2d

852, 862 (3d Cir. 1983), cert. denied, 476 U.S. 1119 (1986).

While this Court has not squarely addressed the status of

the federal parole guidelines, it discussed approvingly

several of the above-referenced cases in Miller v. Florida,

482 U.S. 423, 434-35 (1987). Thus, the majority relied on a

well-established body of law in concluding that the fed-

eral guidelines, at least, are not laws.

eo °

Obviously, the Minnesota parole rules, not the fed-

eral regulations, are at issue in the instant matter. How-

ever, both the Minnesota and federal regulations are

agency statements which indicate how the paroling

agency’s discretion will be exercised. Thus, the reasoning

of the federal courts in determining whether the federal

guidelines are laws clearly applies.

In determining whether the federal guidelines are

laws, the courts have generally asked two questions, (1)

does the agency retain discretion in its decision-making;

and (2) are the policies underlying the ex post facto

clause implicated. See, e.g., Prater v. United States Parole

Comm'n, 802 F.2d at 952-54; DiNapoli v. Northeast Regional

Parole Comm’n, 764 F.2d at 146-47. Applying these ques-

tions to the instant matter demonstrates that the decision

below correctly concluded that the Minnesota regulations

are not laws for ex post facto purposes.

First, under the statute, the Commissioner of Correc-

tions has the same discretion as his predecessor, the MCB.

The current statutory language, which confers complete

discretion on the Commissioner, is virtually identical to

the MCB’s statutory authority. Compare Minn. Stat.

§ 243.05 (1990) with Minn. Stat. § 243.05 (1980). The

Commissioner has exercised his discretion by adopting

the MCB’s determination as to petitioner.

Petitioner argues that because the parole guidelines

promulgated pursuant to Minn. Stat. § 243.05 (1990) con-

fer less discretion on DOC than the statute itself, the

® The relevant portion of Minn. Stat. § 243.05 (1980)

appears in the appendix at A-1.

statute becomes irrelevant and the guidelines become the

“laws” which should alone be reviewed. However, what

is important is not the distinction between statutes and

regulations, but is the decision-maker’s ability to exercise

discretion. In Minnesota, the decision-maker continues to

have discretion relating to petitioner. The parole decision

as to petitioner is not written in stone, as he would have

the Court believe. The DOC rules specifically provide for

special reviews and for modifications of a release date

pursuant to policy changes of the Commissioner. See

Minn. Rules pt. 2940.1500, subp. 2.

Second, the Minnesota rules do not contravene the

policies underlying the ex post facto clause. Those poli-

cies are providing “fair notice . . . when the legislature

increases punishment” and “restraining arbitrary or vin-

dictive legislation.” Miller v. Florida, 482 U.S. 423, 430, 429

(1987). At the time petitioner committed his crimes, the

law provided that a state agency had complete discretion

regarding parole. That law has not changed. Pursuant to

the law in existence at the time Bailey committed his

crime, the MCB determined that petitioner should serve

until expiration. The Commissioner merely adopted that

decision. Furthermore, petitioner cannot possibly argue

that the Minnesota regulations are “vindictive” or “arbi-

trary. °

In sum, the decision below follows the reasoning of

the great weight of authority which has analyzed the

federal parole guidelines and concluded that they are not

“laws” for purposes of the ex post facto clause. There

exists uniformity among the courts that the key to analyz-

ing whether such guidelines are laws is to examine the

agency’s discretion. The court below correctly concluded

10

that, in Minnesota, the decision-maker retains discretion

and that the Minnesota parole guidelines therefore are

not “laws.” There is no reason for this Court to review

that decision.

B. Even If The Minnesota Rules Are Laws, They

Do Not Substantially Disadvantage Petitioner

And Therefore Do Not Violate The Ex Post Facto

Clause.

Two elements are required to establish that a law

violates the ex post facto clause: (1) the law must apply to

events occurring before its enactment; and (2) the law

must disadvantage the offender affected by it. Weaver v.

Graham, 450 U.S. 24, 29 (1981).

The rules at issue in this case are admittedly retro-

spective as applied to petitioner. However, any disadvan-

tage resulting to him does not rise to the level required

for an ex post facto violation.?

Petitioner correctly states that this Court has indi-

cated that adverse changes in a prisoner’s eligibility for

parole may violate the ex post facto clause. Warden v.

Marrero, 417 U.S. 653, 663 (1974). The Eighth Circuit has

followed this position, Yamamoto, 794 F.2d at 1300-01, and

its decision below is not to the contrary. However, key to

determining whether a particular change violates the ex

post facto clause, is whether the change imposes “a

* Petitioner erroneously claims that the state “recognzies”

that the application of the current parole guidelines disadvan-

tages him. Pet. at 6. The DOC has never made such a state-

ment.

11

greater or more severe punishment.” Marrero, 417 U.S. at

663. In the instant matter, the district court correctly

found that the challenged rules did not increase the quan-

tum of petitioner’s punishment.

Petitioner argues that the current rules work to his

detriment because they somehow either repeal his parole

or remove his eligibility for parole. However, he is

wrong. The rules have neither effect. See Bailey v. Noot,

940 F.2d at 1157 n.7.!° The MCB assigned petitioner to the

expiration of his sentence. The Commissioner of Correc-

tions affirmed that decision. Obviously, the quantum of

petitioner’s punishment has not changed.

Nor has the removal of the MCB’s annual reviews

substantially disadvantaged petitioner. The annual

review was conducted pursuant to MCB policies and

procedures which could have been changed at any time,

without following the Minnesota Administrative Pro-

cedures Act. See Minn. Stat. § 15.0411, subd. 2 (1980)

(exempting the MCB from the Minnesota APA). In addi-

tion, the annual review was not an occasion for the recon-

sideration of an inmate’s previously assigned parole

release date. The purpose of the annual review was sim-

ply to evaluate, on paper, the inmate’s progress at the

institution as it applied to the MCB’s plans for that

inmate’s release.

1 Although the decision below does not address this

prong of ex post facto clause analysis, it does state that DOC’s

action did not postpone petitioner's parole eligibility. Bailey,

940 F.2d at 1157 n.7.

12

Moreover, petitioner has failed to show that he

would have received a more favorable parole determina-

tion from the MCB than he has from the Commissioner,

so there is no ex post facto violation. See, e.g., Rush v.

Petrovsky, 756 F.2d 675, 676 (8th Cir. 1985) (no ex post

facto claim where petitioner failed to show he would

have received a more favorable parole determination).

The reasons behind the MCB’s decision to assign peti-

tioner expiration of his sentence are still in existence.

Nothing exists in the record to indicate that petitioner

does not represent a serious threat to the public safety. As

he would not have been released by the MCB, the fact

that he has not been released by the Commissioner can-

not be said to operate to his detriment. See Maggard v.

Wyrick, 800 F.2d 195, 197-98 (8th Cir.), cert. denied, 479 US.

1068 (1986) (reasons are “equally compelling” under the

older new release statutes, so have not operated to peti-

tioner’s disadvantage); Burnside v. White, 760 F.2d 217,

222-23 (8th Cir.), cert. denied, 474 U.S. 1022 (1985) (because

the reasons for denying parole are still present, petitioner

would not have been released under either the old or new

statute, so the guidelines do not operate to his disadvan-

tage).

Petitioner relies heavily on Akins v. Snow, 922 F.2d

1558 (11th Cir.), cert. denied, US. __, 111 S. Ct. 2915

(1991), in his effort to demonstrate a conflict in the cir-

cuits on the issue of whether a change in state parole

rules violates the ex post facto clause. However, Akins is

very different from the instant case. In Akins, the parole

statute, as well as the rules in existence at the time of the

plaintiff's sentence, required an annual hearing to recon-

sider the inmate’s initial parole decision. The subsequent

13

changes to both the statute and rules required a recon-

sideration hearing only every eight years. Under the

scheme, the hearing was essential for parole — no parole

decision would be made without it.

The statute and rules in Akins permitted no agency

discretion, in marked contrast to the situation presented

here. In addition, as is indicated above, the instant case

simply does not raise a question of reconsideration of

parole or removal of parole eligibility. Thus, although the

court in Akins found the plaintiff disadvantaged, Bailey is

not. As a result, there is no conflict between the Eighth

and Eleventh Circuits on this issue and no need for this

Court's review.

In sum, the Court should deny the petition as to

petitioner’s ex post facto claim. The decision below that

the Minnesota parole guidelines in question are not

“laws” for purposes of the ex post facto clause is well-

founded on the widely accepted standard of reviewing

the decision-maker’s discretion. The court below cor-

rectly found that, in Minnesota, the decision-maker

retains discretion and therefore the guidelines are not

“laws.” In addition, contrary to petitioner's arguments,

this case presents neither a significant constitutional

question nor a conflict in the circuits regarding removal

of eligibility for parole. The petition should therefore be

denied.

14

Il. THE COURT SHOULD DENY THE PETITION AS

TO PETITIONER’S CLAIM OF A RIGHT TO

TREATMENT UNDER THE FOURTEENTH

AMENDMENT BECAUSE THERE IS NO SPLIT IN

THE CIRCUITS AND BECAUSE OTHER

GROUNDS SUPPORT THE DECISIONS OF THE

COURTS BELOW.

It is true that this Court has never squarely addressed

the issue of whether a dangerous civilly committed sex-

ual psychopath also serving a prison sentence has a right

to treatment under the fourteenth amendment. The Court

should nonetheless deny the petition as to this issue for

three reasons. First, the Eighth Circuit reasonably deter-

mined that the petitioner has no such right, and there is

no split in the circuits on this issue. Second, even if such a

right exists, two other grounds support the judgment

below: (1) as the district court found, DHS defendants are

qualifiedly immune from damages because such a right

was not clearly established at the time petitioner resided

at MSH; and (2) as the district court found, and the

Eighth Circuit affirmed, petitioner presented insufficient

evidence below to defeat summary judgment for DHS

defendants."

" Petitioner erroneously claims that the Eighth Circuit

addressed only the issue of whether petitioner has a right to

treatment under the Fourteenth Amendment. Pet. at 18. In fact,

the court also specifically affirmed the district court's decision

that DHS defendants satisfied the right to treatment standard

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

Noot, 940 F.2d at 1154 n.4.

15

A. The Eighth Circuit Reasonably Determined

That Petitioner Has No Fourteenth Amendment

Right To Treatment, And There Is No Split In

The Circuits On This Issue.

In O'Connor v. Donaldson, 422 U.S. 563, 573 (1975),

this Court established that a civilly committed non-dan-

gerous mentally ill person has a right to treatment under

the fourteenth amendment. Petitioner’s situation differs

in two distinct and significant ways. First, his civil com-

mitment was specifically based on the finding that peti-

tioner is a dangerous sexual psychopath. Second, he is

also serving a sentence based on criminal felony convic-

tions. Based on these distinctions, this case presented a

question different from that addressed in O’Connor, and it

was reasonable for the Eighth Circuit to reach a different

result. As former Chief Justice Burger noted in his con-

curring opinion in O’Connor, the commitment of a dan-

gerous person necessarily involves the additional policy

consideration of protecting the public, and this reason-

ably distinguishes the analysis of the rights of dangerous

and non-dangerous commitees. See O’Connor, 422 U.S. at

582-83 (Burger, C.J., concurring). Moreover, the basis of

the fourteenth amendment right to treatment is the depri-

vation of liberty which results from commitment. In the

case of a convicted felon subject to a criminal sentence,

this rationale simply does not apply - the prisoner is

being deprived of his liberty because he has committed a

crime, not because of his mental disability. The court

below reasonably relied on both of these grounds in

holding that the petitioner “does not have the constitu-

tional right he claims.” Bailey v. Noot, 940 F.2d at 1154.

16

Moreover, there exists no split in the circuits on this

issue. All of the cases cited by petitioner as contradicting

the decision below are readily distinguished. Rouse v.

Cameron, 373 F.2d 451 (D.C. Cir. 1986), recognized a statu-

tory, not constitutional, right to treatment for the men-

tally ill. Two of the other cases cited by petitioner address

the right to treatment of persons who have been civilly

committed but have not been convicted nor sentenced for

criminal conduct. Wyatt v. Aderholt, 503 F.2d 1305 (Sth Cir.

1974); Eckerhart v. Hensely, 475 F. Supp. 908 (W.D.Mo.

1979). Finally, Bowring v. Godwin, 551 F.2d 44 (4th Cir.

1977), addresses the right to psychiatric treatment of pris-

oners, not civil commitees. In short, none of these deci-

sions concerned the issue of a right to treatment for

someone who, like petitioner, is under a dual commit-

ment - a civil commitment as a dangerous sexual psycho-

path and a criminal sentence for felony convictions. Even

if the court were interested in this issue, it would seem

prudent to allow more courts of appeal to grapple with it

first.

Because the Eighth Circuit reasonably resolved the

issue and there is no split in the circuits, the Court should

deny the petition.

B. DHS Defendants Are Qualifiedly Immune From

Damages.

Even if petitioner has a right to treatment under the

fourteenth amendment, the Court should deny the peti-

tion because DHS defendants are qualifiedly immune

from damages, and the district court judgment is there-

fore correct.

17

This Court has established that government officials

performing discretionary functions are immune from lia-

bility for damages so long as their conduct does not

violate “clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The issue

turns on the “objective legal reasonableness” of the offi-

cials’ actions; they are shielded from liability “as long as

their actions could reasonably have been thought consis-

tent with the rights they are alleged to have violated.”

Anderson v. Creighton, 438 U.S. 635, 638 (1987).

During the time period in question, neither this

Court, nor the Eighth Circuit nor the district court for the

district of Minnesota had ever decided “whether mentally

ill persons dangerous to themselves or to others have a

right to treatment upon compulsory confinement by the

state.” O'Connor v. Donaldson, 422 U.S. 563, 573 (1975). In

addition, there was no analogous decision of this Court

guiding DHS defendants during this period, nor did any

circuit court decisions exist clearly establishing that a

person in petitioner’s situation was entitled to treatment.

In fact, two circuit courts, looking at the period of time

during which petitioner resided at MSH, have conferred

qualified immunity on state officials in the DHS defen-

dants’ shoes precisely because there was no clearly estab-

lished right to treatment for civilly committed dangerous

persons at that time. Smar! v. Simonson, 867 F.2d 429 (7th

Cir. 1989); Knight v. Mills, 836 F.2d 659 (ist Cir. 1987).

Although the Eighth Circuit did not address this

issue, the district court, adopting the magistrate’s schol-

arly analysis, held that DHS defendants were qualifiedly

immune from damages. There is no meritorious reason to

® e

18

review that decision here, and the petition for certiorari

should therefore be denied.

C. DHS Defendants Are Entitled To Judgment As

A Matter Of Law.

All of the judges who have reviewed this case have

found that as a matter of law, the actions of the DHS

defendants satisfied any right to treatment which peti-

tioner may have. There is no reason to reopen this anal-

ysis, and the petition should therefore be denied.

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

addressed the right to treatment of civilly committed

mentally retarded persons. The court recognized a lim-

ited right to treatment for such persons, and described

that right as follows:

The constitution only requires that the courts

make certain that professional judgment in fact

was exercised. It is not appropriate for the

courts to specify which of several professionally

accepted choices should have been made.

457 U.S. at 321 (quotations and citations omitted). In the

instant matter, all five judges addressing this issue have

found that DHS’ actions satisfied the Youngberg standard

by providing petitioner with psychiatric and psychologi-

cal evaluations and numerous treatment opportunities.

Although it is true that Youngberg addresses the right to

treatment of a civilly committed person, surely the scope

of petitioner’s rights can be no greater than those enjoyed

by the involuntarily committed mentally retarded plain-

tiff in Youngberg. The courts below correctly determined

that Youngberg was the appropriate standard to apply, and

19

their conclusions are amply supported by the record. The

petition for certiorari should therefore be denied.

¢

CONCLUSION

For all the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

Husert H. Humpurey, II!

Attorney General

State of Minnesota

CATHARINE F. HAUKEDAHL

Solicitor General

Counsel of Record

525 Park Street, Suite 200

St. Paul, MN 55103

(612) 296-7537

Attorneys for Respondents

i

APPENDIX

Page

hs Ss Se A I on cvccecncccccescsnesed A-1

Minn. Rules § 2940.1500, subp. 2 (1991)............ A-1

A-2

Minn. Corr. Bd. R. 704.4(b) (1977)...............4..

A-1

Minn. Stat. § 243.05 (1980)

The corrections board may parole any person sen-

tenced to confinement... .

Minn. Rules pt. 2940.1500, subp. 2 (1991)

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 commissioner.

B. Special reviews of 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 computa-

tional errors;

(2) sentence change caused by modification in the

computation of the “Minnesota Corrections Board Parole

Decision-Making Guidelines”; and

(3) policy changes established by the commissioner

which affect the term of imprisonment.

C. The program review team shall determine if the

criteria for a special review have been met. If the criteria

have been met, the program review team shall forward

A-2

the information and recommendation to the executive

officer of adult release. The executive officer of adult

release shall make the final decision, regarding the

requested adjustment in the release date.

Minn. Corr. Bd. R. 704.4(b) (1977)

Interim annual reviews

Annual reviews between the initial hearing and the re-

entry hearing will be non-appearance reviews. For these

annual reviews the caseworker will prepare a summary

which contains information relative to:

(1) Inmate progress on MAP contract, if applicable.

(2) Inmate participation in activities, programs, treat-

ment, education, vocational training, work assign-

ments, etc.

(3) Any convictions (including guilty pleas or

“waivers”) of violations of the Inmate Disciplinary

Code, and the disposition for each conviction.

(4) Any reports given the inmate for meritorious behav-

ior.

Caseworkers will provide the copies of this summary to

the Board and to the inmate ten working days before the

scheduled interim review.