Reply Brief — Bailey v. Noot

a2

jy bsmevre ORIGINAL .

No. 91-7002

“ARTHUR E. NOOT, ORVILLE UNG, $e a

CHARLES G. SHEPPARD, LESLIE R. GREEN, —_ “a

WILLIAM F. McCRAE, BRUCE M. BELTT,

RICHARD A. ALSTAD, JAMES BRUTON, —

® HENRY GREENCROW, and DOROTHY SKWIERA,

‘ ae r ; we . -

; On! PERMIEN FOR A WRIT OF CERTIORARI ly

TO THE UNITED STATES COURT OF APPEALS —

FOR THE EIGHTH CIRCUIT S

7 bs $

| PETITIONER'S. REPLY TO BRIEF IN OPPOSITION.

a; ts

i Alan M. Anderson

a Counsel of Recand b,

te ROBINS, CAPLAN, MILLER & CIRESI

TABLE OF CONTENTS

Page

Table of Authorities ii

Introduction 1

Argument 1

I. BAILEY’S EX POST FACTO LAW CLAIM

RAISES IMPORTANT, UNRESOLVED

ISSUES OF CONSTITUTIONAL LAW ON

WHICH A SPLIT IN THE CIRCUITS

EXISTS l

A. The Federal Parole Guideline Cases Are

Inapposite To This Petition 2

B. The New Minnesota Regulations

Substantially Disadvantage Bailey 5

II. BAILEY’S RIGHT TO TREATMENT CLAIM

PRESENTS AN IMPORTANT UNRESOLVED

ISSUE OF CONSTITUTIONAL LAW 6

Conclusion 4

TABLE OF AUTHORITIES

Page(s)

Cases

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

cert. denied, __ U.S. — , 111 S. Ct. 2915 (1991) ....... 5

Bailey v. Noot, 940 F.2d 1150

(8th Cir. 1991)

Dobbert v. Florida, 432 U.S. 282 (1977)

Harlow v. Fitegerald, 457 U.S. 800 (1982)

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

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

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

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

aocnganna oa *#&

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

Prater v. United States Parole Comm'n,

802 F.2d 948 (7th Cir. 1986)

ew

Pulliam v. Allen, 466 U.S. 522 (1984)

Rodriguez v. United States Parole Comm'n,

594 F.2d 170 (7th Cir. 1979)

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

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

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

(Minn. 1982)

Wyatt v. Aderholt, 503 F.2d 1305

(5th Cir. 1974)

Yamamoto v. United States Parole Comm'n,

794 F.2d 1295 (8th Cir. 1986)

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

Statutes

Minn. Stat. § 14.38

6, 8-9

Rules

3 Minn. Rules § 2940.1500, subp. 2

Minnesota Corrections Bd.: Adult and Youthful

Offender Parole Policies and Procedures,

§§ 7-101.15-.16, 7-101.1%a), 7-104.4(b)

(July 1977)

INTRODUCTION

This Reply Brief is submitted on behalf of Petitioner

Clark Albert Bailey (“Bailey”) in response to the Brief in

Opposition filed by the Respondents (collectively “the

State”). In its Brief in Opposition, the State contends that

Bailey’s petition for a writ of certiorari on his ex post facto

law claim should be denied because the revised Minnesota

regulations which are admittedly being applied

retroactively are not laws for purposes of the ex post facto

clause. Alternatively, the State argues that the new

regulations do not substantially disadvantage Bailey. In

making these arguments, the State ignores binding

Minnesota statutory and case law, relies upon inapposite

makes arguments whi ve been previously rejected

this Court. . . -

With regard to Bailey’s petition for a writ of certiorari

on his Fourteenth Amendment claim, the State admits

that this Court has never addressed the important issue

raised by that claim. Instead, the State lamely suggests

that this Court should allow “more courts of appeal to

grapple with” the issue. (Brief in Opposition at 16.) The

State further raises arguments never addressed or decided

by the Eighth Circuit in the underlying decision. In any

event, the arguments raised by the State are without

merit. This Court should grant Bailey’s Petition for a Writ

of Certiorari in its entirety.

ARGUMENT

l. BAILEY’S EX POST FACTO LAW CLAIM

RAISES IMPORTANT, UNRESOLVED

ISSUES OF CONSTITUTIONAL LAW ON

WHICH A SPLIT IN THE CIRCUITS EXISTS.

Bailey’s ex post facto law claim raises important,

unresolved issues of constitutional law on which a split in

the circuits exists. The State attempts to argue that no

important unresolved issue or split in the circuits exists by

l

claiming that cases holding the federal parole guidelines

are not laws support the Eighth Circuit’s decision in this

action. Those cases have no relevance to the issues raised

in this Petition, however. To the extent the reasoning of

thos cases does have relevance, the reasoning applied in

the federal parole guideline cases supports Bailey's

Petition. In addition, the State’s argument that Bailey

has not been substantially disadvantaged by the

retroactive application of the new Minnesota regulations

is directly contrary to this Court’s previous decisions.

A. The Federal Parole Guideline Cases Are

Inapposite To This Petition.

The State first attempts to claim that the decision of the

Eighth Circuit is supported by the numerous decisions

from other circuits holding that the federal parole

guidelines are not laws. Yet, as the State itself recognizes,

“the Minnesota parole rules, not the federal regulations,

are at issue in the instant matter.” (Brief in Opposition at

8.) Unlike the federal regulations, the new Minnesota

regulations, by statute and case law, have the force and

effect of law and may not be disregarded by the Office of

Adult Release (“OAR”). See Minn. Stat. § 14.38, subd. 1;

State v. Hopf, 323 N.W.2d 746, 752 (Minn. 1982); State ex

rel. Indep. Sch. Dist. No. 6 v. Johnson, 242 Minn. 539, 548,

65 N.W.2d 668, 673 (1954). Nowhere in its Brief in

Opposition does the State address this fact.’

Moreover, the State misinterprets the federal parole

guideline cases by suggesting those decisions held that

changes in the federal guidelines did not violate the ex

post facto clause either because the statutory discretion

remained unchanged or because the regulations were

non-bining guidelines. These factors are not independent

grounds for the holdings; both are necessary. No federal

' Indeed, an assistant Minnesota attorney general, several of the

individual respondents, and their agents have repeatedly stated that

the new regulations have the force and effect of law and cannot be

disregarded. (See Bailey's Appendix in the Eighth Circuit at 15-18, 20,

75-77, 79, 82-84, 88-89, 90-91, 111, 200-02.)

2

left to the agency under its own regu/ations also remained

unchanged. See, eg. Prater v. United States Parole

Comm'n, 802 F.2d 948, 953-54 (7th Cir. 1986) (en banc).

The State’s argument that because the statutory discretion

of the parole authority remains unchanged, Bailey’s ex

post facto rights have not been violated simply begs the

question. Bailey does not allege that the ex post facto

clause was violated by an amendment to the statute. He

alleges that the clause was violated when binding

regulations were promulgated that eliminated the very

discretion granted under the statute. The fact that

discretion still exists under the statute to parole Bailey at

any time does not do him any good when, under the terms

of binding regulations, that discretion can no longer be

exercised. Adoption of the State’s argument would mean

the end of the ex post facto clause, because it would permit

the legislature to do indirectly what it clearly cannot do

directly. See, e.g., Yamamoto v. United States Parole

Comm'n, 794 F.2d 1295, 1300 (8th Cir. 1986); Rodriguez v.

United States Parole Comm'n, 594 F.2d 170, 173 (7th Cir.

1979). Even though the State retains the authority to

amend the regulations, the new regulations still violate

the ex post facto clause. Every legislature has the power to

amend its laws and every agency its regulations. The

cmstence of that power is the sunsen fer the ox pest facte

use.

The State points out that the new regulations permit a

change in release dates to correct mathematical errors or

to reflect system-wide policy changes. But the State’s

case. Inmates were reviewed annually to consider whether

their release dates should be changed. The State admits

that under the statute and rules in effect at the time Bailey

committed his crimes, “the law provided that a state

agency had complete discretion regarding parole.” (Brief

in Opposition at 9.) The new regulations take away the

discretion. Under the current statute and new regulations,

Bailey’s release date of the expiration of his sentence “will

be left in full force and effect by the commissioner.” 3

Minn. Rules § 2940.1500, subp. 2. He is no longer eligible

for parole. He has not received any annual reviews at

which his release date could be changed for over ten years.

Indeed, the lower courts found that “the current OAR

regulations are less favorable than the former MCB

{Minnesota Corrections Board] guidelines.” (Magistrate's

Report and Recommendation, dated March 23, 1988, at 8.)

The State also claims that the new Minnesota regula-

tions which are being retroactively applied to Bailey do

not contravene the policies underlying the ex post facto

clause, because Bailey had fair notice that the statute and

regulations which were in existence at the time he

committed his crimes could be changed. This argument

was rejected by this Court in Miller v. Florida, 482 US.

423, 431 (1987). As this Court ruled in that decision, the

constitutional prohibition against ex post facto laws

cannot be avoided merely by warning a person that a law,

like any other law, is subject to revision. /d

Thus, as set forth in Bailey's Petition, the reasoning

applied by the Eighth Circuit to determine whether

regulations are laws for purposes of the ex post facto

clause is contrary to the reasoning adopted by other

circuits and to the method for analyzing ex post facto law

claims previously announced by this Court. (See Petition

for a Writ of Certiorari at 10-16.) If the reasoning adopted

by the Eighth Circuit is permitted to stand, then the ex

post facto clause is effectively read out of existence. See

Bailey v. Noot, 940 F.2d 1150, 1158-59 (8th Cir. 1991) (Lay,

C.J., dissenting). Bailey’s Petition should be granted to

address and resolve these issues.

4

B. The New Minnesota Regulations

Substantially Disadvantage Bailey

The State finally argues that even if the Minnesota

regulations which are being retroactively applied are

considered laws for purposes of the ex post facto clause, no

violation exists because they do not substantially

disadvantage Bailey. The State contends that because

Bailey’s quantum of punishment has not changed, and

because Bailey cannot show that he would have received a

more favorable parole determination under the old

regulations as opposed to the new, no ex post facto law

violation exists. (See Brief in Opposition at 10-12.)

This precise argument has twice been rejected by this

Court. See Miller v. Florida 482 U.S. at 432; Lindsey v.

Washington, 301 U.S. 397, 401-02 (1937). As this Court has

stated, “one is not barred from challenging a change in

the penal code on ex post facto grounds simply because

the [punishment] he received under the new law was not

more onerous than that which he might have received

under the old.” Dobbert v. Florida, 432 U.S. 282, 300

(1977). It is the elimination of discretion to parole Bailey

that causes the new regulations to run afoul of the ex post

facto clause. Bailey’s point is that the statutory discretion

can no longer be exercised because of the new regulations.

Moreover, the State’s effort to distinguish the directly

contrary decision of the Eleventh Circuit in Akins v.

Snow, 922 F.2d 1558 (11th Cir.), cert. denied, _. U.S. __,

111 S.Ct. 2915(1991), simply fails. The fact that the statute

in Akins required an annual hearing to consider parole is

no different than the undisputed fact that in this case, the

regulations in effect at the time of the commission of

Bailey's crimes required annual reviews at which a

prisoner could be considered for parole and his release

date changed.? Under the new regulations, the OAR has

no discretion to reconsider Bailey's release date or to

* See Minnesota Corrections Bd.: Adult and Youthful Offender Parole

Policies and Procedures, §§ 7-101.15-.16, 7-101.1%a), 7-104.4(b) (July

1977) (reproduced in the Appendix to Bailey's Petition for a Writ of

Certiorari at A-30-31.)

5

provide him with parole. No further annua! reviews are

given to Bailey. The Eleventh Circuit’s reasoning and

holding is directly contrary to that of the Eighth Circuit.

As expressed in Bailey's original Petition, every other

circuit court which has considered the issue has determined

that a change in parole eligibility to the detriment of a

prisoner violates the ex post facto law clause. This Court

has similarly held that depriving an inmate of the

opportunity to shorten his confinement violates the ex

post facto clause. (See Petition for a Writ or Certiorari at

12-15.) This Court should grant this Petition to address

these important, recurring constitutional law questions

which are vital to the application of the ex post facto

clause in the context of regulations affecting parole

eligibility.

Il. BAILEY’S RIGHT TO TREATMENT CLAIM

PRESENTS AN IMPORTANT, UNRESOLVED

ISSUE OF CONSTUTIONAL LAW.

The State admits that this Court has never squarely

addressed the issue of whether a dangerous person civilly

committed has a constitutional right to treatment under

the Fourteenth Amendment. The Eighth Circuit held that

no such constitutional right exists. The State lamely

suggests that this Court should “allow more courts of

appeal to grapple” with the issue. (Brief in Opposition at

16.)

However, this Court previously has addressed this issue

in a number of similar contexts, and has always held that

a constitutional right to treatment exists under the

Fourteenth Amendment. In O’Connor v. Donaldson, 422

U.S. 563 (1975), this Court held that a civilly committed

mentally ill person has a right to treatment under the

Fourteenth Amendment. In Youngberg v. Romeo, 457

U.S. 307 (1982), this Court held that a civilly committed

mentally retarded person had a constitutional right to

receive treatment. In Humphrey v. Cady, 405 U.S. 504

(1972), this Court stated that allegations by a convicted

criminal civilly committed to a state hospital facility that

he had been deprived of treatment raised substantial

constitutional law claims. If all these individuals have a

Fourteenth Amendment right to treatment, on what

principled basis can Bailey be denied that right, especially

since he was committed to receive “care, treatment, and

custody”’? (See Bailey’s Appendix in the Eighth Circuit at

10, 191-92 (emphasis added).)

Ifa state is going to employ its inherent power to protect

the public by civilly committing a person, then the guid

pro quo for such commitment must be the obligation of the

state to provide minimally adequate treatment such that

the committed person has a reasonable opportunity to end

the commitment. A failure to require such treatment

turns the civil commitment into an indefinite or life term

of imprisonment without any of the protections inherent

in the criminal justice system. It would be no different

than if a state indefinitely committed a person who was

incompetent to stand trial, see Jackson v. Indiana, 406

USS. 715 ( 1972), or indefinitely incarcerated an individual

pending trial, or simply incarcerated a person for life

regardless of the crime via civil commitment.

The Fifth Circuit, in describing its decision in Donaldson

v. O'Connor stated:

In Donaldson, we held that civilly committed mental

patients have a constitutional right to such individual

treatment as will help each of them to be cured or to

improve his or her mental condition. We reasoned

that the only permissible justifications for civil

commitment, and the massive abridgements of

constitutionally protected liberties it entails, were the

danger posed by the individual committed to himself

or to others or the individual’s need for treatment and

care. We held that where the justification for

commitment was treatment, it offended the

fundamentals of due process if treatment were not in

fact provided; and we held that where the justification

was the danger to self or to others, then treatment

had to be provided as the guid pro quo society had to

7

pay as the price of the extra safety it derived from the

denial of the individual’s liberty.

Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974). If

the state of Minnesota is going to obtain for its citizens

some additional measure of safety by civilly committing

Bailey in addition to convicting him of a crime, then the

State must provide him with a reasonable opportunity to

be relieved of that commitment. Every other circuit court

which has considered the right to treatment of a civilly

committed person has found that such a right exists. This

Court should grant Bailey’s Petition to address this

important issue, and to resolve the split between the

circuits created by the Eighth Circuit’s decision.

Recognizing the need for this Court to grant Bailey’s

Petition to address this issue, the State raises two issues

which were not decided by the Eighth Circuit. The State

claims that it is qualifiedly immune from damages on

Bailey’s right to treatment claim, and that it is entitled to

judgment as a matter of law. This Court should not

consider fact-bound arguments which were never

addressed by the Eighth Circuit.’

In any event, the State is not qualifiedly immune from

Bailey’s claims based upon analogous and similar

decisions which clearly presaged or announced a

Fourteenth Amendment-based right to treatment for

dangerous civilly committed persons. (See cases cited at

pages 18-19 of Bailey’s Petition for a Writ of Certiorari.)

Morever, the State remains liable to the extent Bailey has

sought declaratory and injunctive relief requiring the

State to provide him with treatment. See Pulliam v. Allen,

466 U.S. 522, 541-42 (1984); Harlow v. Fitzgerald, 457 U.S.

800, 819 n.34 (1982). Furthermore, this Court’s decision in

Youngberg does not mean the State is entitled to judgment

as a matter of law. To the extent that decision is even

applicable in this matter, Bailey’s claim is not a dispute

over the type of treatment to be provided. Rather, Bailey’s

3 Bailey vigorously contests these arguments and did so quite

extensively in the court of appeals and district court.

8

claim is that he has been denied all treatment. No dispute

between different treatment methods such as existed in

Youngberg exists in this action.‘

CONCLUSION

For the foregoing reasons, as well as those expressed in

his Petition for a Writ of Certiorari, Petitioner Clark

Albert Bailey prays that a Writ of Certiorari issue to the

United States Court of Appeals for the Eighth Circuit.

Dated: February 24, 1992.

Alan M. Anderson

Counsel of Record

ROBINS; KAPLAN, MILLER

& CIRESI

2800 Lasalle Plaza

800 Lasalle Avenue

Minneapolis, MN 55402-2015

(612) 349-8500

Attorney for Petitioner

‘ The sworn testimony of Dr. Sheppard reveals that the State exercised

no medical judgment in denying Bailey treatment. Instead, Bailey was

simply “incarcerated” because Dr. Sheppard, in his own words, did not

trust Bailey any farther than he could throw a piano and that opinion

would not change while Bailey was under his care. (See Bailey's

Appendix in the Eighth Circuit at 141, 145, 146.)

9