# Reply Brief — Bailey v. Noot

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0305%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 952

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0305%3A4. Public record. Not legal advice.