Reply Brief — Seling v. Young

FILED

AUG 7 2000

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Supreme Court, US.

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NO. 99-1185

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IN THE

SUPREME COURT OF THE UNITED STATES

MARK SELING, Superintendent,

Special Commitment Center,

Petitioner,

v.

ANDRE BRIGHAM YOUNG,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF OF PETITIONER

CHRISTINE O. GREGOIRE

. Attorney General

SARAH BLACKMAN SAPPINGTON*

Assistant Attorney General

DAVID J. W. HACKETT

Special Assistant Attorney General

WILLIAM BERGGREN COLLINS

MAUREEN HART

Senior Assistant Attorneys General

900 Fourth Avenue, Suite 2000

Seattle WA 98164-1012

(206) 464-6430

*Counsel of Record

Counsel for Petitioner

TABLE OF CONTENTS

;

, IPSUM Ps NENEUT coninunrecsntepsenteneniscsqinissieiscenbinimentaenmiiniadasita l

REP EUIIES cevinsnmcrssiccsesssastesnnsenssnenanasidiniistiniaaiiniapmienaail 2

I. Washington’s Statute Is A Civil Commitment Law ......... 2

A. This Case Presents The Threshold Question

} Of Whether The Civil Or Criminal Nature

| Of A Statute Is Determined From The Face

Of The Law Or “As Applied” .......:scccsosocsrsscsersessesees 2

B. Hudson v. United States Requires That The

Civil Or Criminal Nature Of A Law Be

Determined On Its Face, Not “As Applied” ............... 2

C. A Facial Test, Not An “As Applied” Test,

Appropriately Determines Whether The

Legislature Has Enacted A Civil Or

SS SRI cncctccnevcrniicrninncntecniinniaineninannéa 8

II. Young’s Recourse For Allegedly Punitive

Conditions Of Confinement Is A Challenge To

The Conditions, Not A Challenge To The Statute.......... 11

III. Young’s Renewed Attacks On The Facial Validity

Of The Statute And On His Commitment

PID TONES. CS Pe cccnrescinasscincactpecnnsiinpiniinimiaiasaceinnanis 15

CO sicecsivirsictsiersirrrerlainitiaiaimene

TABLE OF AUTHORITIES

Cases

Ada v. Guam Soc'y of Obstetricians & Gynecologists

carter pradipndsnceusevocennenonsannccnsoonee 6

Allen v. Illinois

sic ns nrecanepesicesousicnesentnccsonnnnnansese 5,7, 11

Department of Rev. of Montana v. Kurth Ranch

ee 3

Dowling v. United States

isn scersenepencnnnnnnenccecquenaenenessseqneneet 9

Federal Energy Admin. v. Algonquin SNG, Inc.

deca pascpncnncennencnamnnessenonees 1,15

Garcia v. United States

aE 18

Garner v. Jones

snd na cnmtensignasecéneonennupennnenesesseneent 4

Hudson v. United States

si canicindanciacinbonessosnnccnssmmeanens 2-5, 8-10

Hutto v. Finney

I di crecaantnteesnsennnsenenennanannasenccnentees 14

In re the Personal Restraint Petition of Young

ith ncn dgcppnensenenonocqnenenecescene 16, 19

Kansas v. Hendricks

i ecarastannenmnenccencceentn 6, 15, 18, 19

Kendall v. United States ex rel. Stokes

aaa pc mntnameemennenmnsnanaes 11

Miller v. Florida

Re Se SP POT Pescrscccesecessssssercscesorevercsonccceneenensenneeecsscesece 9

ili

Reno v. Flores

EET a ae 7

Sas v. Maryland

295 F. Supp. 389 (D. Md. 1969) .......cccccccccccccccccceeceeceeseeeeees s

Sas v. Maryland

334 F.2d 506 (4th Cir. 1964) .oooccccccccccccccccecececeeeeeseeesenseees 7

Schall v. Martin

467 U.S. 253 (1984) ....ccccccccccccccscccccsscceseeceeeeseeeeeesereeseeeeees 6,7

Schick v. Reed

ERE Gi A Ue csiccneccccnncccccncsneccnsncnassancessstenensesensezeneesnaes )

Trans World Airlines, Inc. v. Thurston

469 U.S. 111 (1985)........cccccccccccccccscccscesscessseceeseceeeseeeeeces 15

United States v. Christian Echoes Nat'l Ministry, Inc.

ET Se 5

United States v. Halper

490 U.S. 435 (1989)... ccccccccccccccccccccsccesseceeseeeeeeeeeseeeeneeseeeees 2

United States v. Ward

448 U.S. 242 (1980) ........ccccccccccccccccsceceseceeseeeeeeeeeeeees 3, 5,10

Yee v. City of Escondido

DOS U.S. SID (19G2).......cccccccccccccccccccscccccccscccssscscceccsscsessceees 15

Young v. Weston

192 F.3d 870 (9th Cir. 1999) ooo. 6, 8, 12, 15, 18

Constitutional! Provisions

Wash. Const. art. II, § 12

iv

Statutes

GB UBC. 6 BGG cncccccccccccscssecevccsssesessssssscenesessnssssonssesessoss 4,8, 11

Wash. Rev. Code § 43.88.020(7).......ccccccccseseereeeeesereeeeesennens 16

Wash. Rev. Code § 43.88.080................sssssssssssresesersenseensees 16

Wash. Rev. Code § 71.09.020...............sssssssssserrseserrsseeeeeeees 18

Wash. Rev. Code § 71.09.080(2)...........ccccccccesseeseeceeeees 5, 11, 16

1990 Wash. Laws, Ist Ex. Sess., ch. 16, § 203(g), (h) ........... 17

1991 Wash. Laws, Ist Sp. Sess., ch. 16, § 204(3) ...........c00000 17

1993 Wash. Laws, Ist Sp. Sess., ch. 24, § 204(3) .........:cc000+ 17

1995 Wash. Laws, Ist Sp. Sess., ch. 1, § 204(3) .........:cccceeeeee 17

1995 Wash. Laws, 2d Sp. Sess., ch. 18, § 204(3) ........cccccceeee 17

1996 Wash. Laws ch. 283, § 204(3) ........ccccccccssseesseeseeeneeneees 17

1997 Wash. Laws, ch. 149, § 204(3) ...........ccccccccceeeeeneeeeeeenees 17

1997 Wash. Laws, ch. 454, § 1104(3) .........ccccccccceeeeeeeneeenees 17

1998 Wash. Laws, ch. 346, § 204(3) ........cccccccccseeserseeeeeeneenes 17

1999 Wash. Laws, ch. 309, § 1204(3) .0.............ccccceseeeeeeeeeeeeee 17

1999 Wash. Laws, ch. 309, § 205(3) ..........ccccscsseeereseereeeeeeeees 17

2000 Wash. Laws, 2d Sp. Sess., ch. 1, §§ 205(3), 1013......... 17

Other Authorities

Wash. Legis. Budget Notes, 1997-99 Biennium

OC) 17

Wash. Legis. Budget Notes, 1999-00 Biennium

a 17

INTRODUCTION

The Question Presented in this case is “[w]hether an

otherwise valid civil commitment statute can be divested of its

civil nature and held to violate the double jeopardy and ex post

facto clauses because the administrative agency operating the

commitment facility fails to provide treatment and other

conditions of confinement mandated by the statute at some

time during the individual’s commitment.”

Only a fraction of Young’s brief addresses the question

before the Court — the appropriate test for determining the civil

versus criminal nature of Washington’s Statute. Much of

Young’s brief ignores this threshold question and argues that

the Statute is unconstitutional. Young also focuses on an array

of legal issues that are not remotely subsumed within the

Question Presented, seeking to modify the judgment below.

The Ninth Circuit rejected Young’s facial double jeopardy,

ex post facto, and substantive due process challenges to

the Statute, as well as numerous challenges specific to his

commitment. Young did not petition (or cross petition) for

review of these issues and is barred from raising them. See

Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548,

560 n.11 (1976).

In the remainder of this brief, the State replies to those

arguments made by Young that are directed to the Question

Presented (Parts I and II). The State then briefly responds to

issues not properly before the Court, but discussed at length by

Young, lest the State be understood to accede to Young’s

arguments (Part III).

ARGUMENT

I. Washington’s Statute Is A Civil Commitment Law

A. This Case Presents The Threshold Question

Of Whether The Civil Or Criminal Nature

Of A Statute Is Determined From The Face

Of The Law Or “As Applied”

This Court has developed a two-part test to determine

whether a particular proceeding or remedy is civil or criminal.

First, the Court looks to see whether the Legislature expressly

or impliedly labeled the law as civil or criminal. Hudson v.

United States, 522 U.S. 93, 99 (1997). Second, if the

Legislature has adopted the civil label, the Court inquires

whether the “statutory scheme” is so punitive, either in purpose

or effect, as to transform a civil remedy into a criminal penalty.

Id. The civil versus criminal inquiry is a threshold question. A

Court must first determine whether a law is civil or criminal

before it can determine the applicable constitutional limits on

the Legislature’s authority to adopt the law, such as the double

jeopardy and ex post facto clauses.

This case presents the narrow but important question of

whether the second part of the test is considered in relation to

the statute on its face or “as applied”. In this context, “as

applied” does not refer to the constitutionality of a Statute as

applied. Rather, it refers to the threshold question of the civil

versus criminal nature of a statute and whether the Court

considers the application of the statute in that inquiry.

B. Hudson v. United States Requires That The

Civil Or Criminal Nature Of A Law Be

Determined On Its Face, Not “As Applied”

Hudson disavowed an “as applied” approach for

determining whether a statute imposes a civil or criminal

remedy. Referring to United States v. Halper, 490 U.S. 435,

447 (1989), the Court explained, the “second significant

departure in Halper was the Court’s decision to ‘assess the

character of the actual sanctions imposed’”. Hudson, 522 U.S.

—

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at 101. The Court in Hudson emphasized that, in determining

the civil or criminal nature of a remedy, the nonexclusive

factors of Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963),

“must be considered in relation to the statute on its face”.

Hudson, 522 U.S. at 100 (quoting Kennedy, 372 U.S. at 169).

Hudson did not announce a new principle in this respect. “This

Court has often stated that the question whether a particular

statutorily defined penalty is civil or criminal is a matter of

Statutory construction.” United States v. Ward, 448 U.S. 242,

248 (1980).

Young advances four arguments to avoid the holding in

Hudson. In the first, he attempts to distinguish Hudson from

the case at bar. According to Young: “Hudson involved only

property rights, a subject not contemplated under the ex post

facto or double jeopardy clauses.” Resp. Br. at 31.

Young mischaracterizes Hudson. In Hudson, the Court

applied the two-part test to determine the threshold question of

whether the law authorizing the fine was civil or criminal.

Hudson, 522 U.S. at 99. The double jeopardy clause did not

apply because the law was civil. Hudson, 522 U.S. at 94. If

the Court had concluded that the purpose and effect of the fine

was criminal punishment, it would have applied the double

jeopardy clause even though only property was involved. See

Department of Rev. of Montana v. Kurth Ranch, 511 U.S. 767,

783 (1994) (Montana tax on dangerous drugs is characterized

as punishment for purposes of the double jeopardy clause).

Another distinction Young asserts is that the Court did

not apply the double jeopardy clause in Hudson because it was

unnecessary in light of other constitutional protections, such as

the Eighth Amendment prohibition against excessive civil

fines. Resp. Br. at 31-33. The holding in Hudson was not

based on the Court’s passing observation that other

constitutional protections may be available. Hudson, 522 U.S.

at 102-03 (“Finally, it should be noted that some of the ills at

which Halper was directed are addressed by other

constitutional provisions.”). Moreover, the Court’s observation

that other constitutional protections are available applies

equally to conditions of confinement which can be challenged

under the due process clause in an action under 42 U.S.C.

§ 1983. See infra p. 11. Young’s argument provides no basis

for distinguishing Hudson, which controls this case.

Young’s second argument to avoid Hudson is that its

rejection of the “as applied” test is inconsistent with other

decisions of the Court. According to Young, the Court always

considers the constitutionality of statutes as applied. Resp. Br.

at 17, 20-23. This argument is not well taken. Whether a

statute is civil or criminal is a threshold question that

determines the constitutional rules that the statute must satisfy.

As the Court observed in Hudson, “Halper marked the first

time we applied the Double Jeopardy Clause to a sanction

without first determining that it was criminal in nature”.

Hudson, 522 U.S. at 100. The civil or criminal inquiry is a

separate question from whether the statute satisfies applicable

constitutional rules.

Young begins by discussing Garner v. Jones, 120 S. Ct.

1362 (2000), the single post-Hudson case he cites to support

his argument. Resp. Br. at 16-17. Garner is inapposite.

Garner did not involve the threshold question of whether the

law was civil or criminal. The law at issue was plainly

criminal in nature.

The question in Garner was whether a new criminal

rule adopted by the Georgia parole board, that retroactively

lengthened intervals between consideration for parole, violated

the ex post facto clause by increasing the punishment for a

crime after it was committed. The Court described the legal

standard for such a determination as whether the law “creates a

significant risk of prolonging respondent’s incarceration”.

Garner, 120 S. Ct. at 1368. Because the Georgia parole board

possessed significant discretion in considering parole both

before and after adoption of the new rule, the Court determined

that it was necessary to look at how the change in the law was

being applied to determine whether it in fact “creates a

=

significant risk of prolonging respondent’s incarceration”.

Thus, the particular inquiry and the controlling legal doctrine in

Garner made the law’s administration a necessary and relevant

consideration. That is not the case here.

. Young also supports this argument with long string-

cites in footnotes and a brief discussion of cases such as Yick

Wo v. Hopkins, 118 U.S. 356 (1886), and Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429 U.S.

252 (1977). Resp. Br. at 21-23 nn.11-18. With the exception

of United States v. Ward, 448 U.S. 242 (1980), and Allen vy.

Illinois, 478 U.S. 364 (1986), none of these cases address the

threshold question at issue in this case of whether the civil or

criminal nature of a statute is determined on its face or “as

applied”. Instead, these decisions go to the subsequent

question of whether a civil or criminal law is constitutional as

applied. In Ward, the Court considered the civil or criminal

nature of the statute involved. However, the Court examined

the statute on its face, not “as applied”. Ward, 448 U.S. at

249-50. Thus, Ward is consistent with the approach laid out in

Hudson. Allen also does not support Young’s argument.

See infra p. 7.

In Hudson, this Court held that the civil or criminal

nature of a law is determined on its face, not “as applied”. The

fact that the Court considers the application of statutes to

determine the subsequent question of constitutionality in no

way undercuts this Court’s holding in Hudson.

- ' Moreover, as the State points out in its opening brief, even if

“administrative application” were relevant to the question at hand, Young

and the Ninth Circuit fundamentally distort the notion of an “as applied”

challenge. Pet. Br. at 18 n.11. Young alleges that he has been subjected to

punitive conditions of confinement at the Special Commitment Center

(SCC). Such conditions are neither imposed by the terms of Washington's

Statute nor within the exercise of discretion that the Statute would allow.

Indeed, they would be directly contrary to the Statute’s requirement that

committed persons are entitled to “adequate care and individualized

treatment”. Wash. Rev. Code § 71.09.080(2); Pet. App. at 122a; see United

States v. Christian Echoes Nat'l Ministry, Inc., 404 U.S. 561, 565 (1972)

Young’s third argument to distinguish Hudson is that

the Court always considers the law “as applied” when

confinement is involved. The Ninth Circuit also purported to

distinguish Hudson on this basis. Young v. Weston, 192 F.3d

870, 874 n.4 (9th Cir. 1999); Pet. App. at 7a n.4. In our

opening brief we explained why the Ninth Circuit was in error.

Pet. Br. at 19-23. Young’s arguments are similarly flawed.

Young offers four cases to support this argument.

Young first cites Kansas v. Hendricks, 521 U.S. 346

(1997), and claims that this Court upheld the Kansas sexually

violent predator law “only after a careful analysis of the

conditions of confinement”. Resp. Br. at 15-16. This is not

accurate. As we explained in our opening brief, both the

majority and the dissent mentioned conditions of confinement

including lack of treatment. However, the holding of the

majority, and the conclusion of the dissent, focused on the

Kansas statute on its face. Hendricks, 521 U.S. at 367, 368-69,

383-88; Pet. Br. at 21-22.

Young next discusses Schall v. Martin, 467 U.S. 253

(1984). Schall involved a due process challenge to a law

authorizing pre-trial detention of accused juvenile delinquents.

The issue in Schall was not the civil versus criminal character

of the law. According to Young, the Court found it necessary

to consider the conditions under which the juveniles were

confined. Resp. Br. at 18. Contrary to Young’s claim,

although the majority opinion mentioned actual conditions in

passing, its analysis focused on the language and operation of

the law. Jd. at 269-71. For example, the Court relied on the

fact that the law strictly limited the period of confinement,

(discussing required nexus between an “as applied” challenge and the terms

of the statute); see also Ada v. Guam Soc'y of Obstetricians &

Gynecologists, 506 U.S. 1011 (1992) (Scalia, J., dissenting) (An “as

applied” challenge is one where “the plaintiff contends that application of

the statute in the particular context in which he has acted, or in which he

proposes to act, would be unconstitutional”).

provided for an expedited hearing, and prohibited incarceration

of juveniles with adults. Jd. Schall is consistent with Hudson.

Similarly, Reno v. Flores, 507 U.S. 292 (i$93),

provides no support for Young’s argument. Reno also involved

a Due Process challenge to an Immigration and Naturalization

Service regulation governing the custody of juvenile aliens.

Young claims the Court approved the regulation on its face, but

only upon satisfying itself that the conditions of confinement

were decent and humane. Resp. Br. at 18-19. In fact, the

conditions of confinement were not before the Court because

the parties entered into an agreement that settled the claims

regarding conditions. This agreement could be enforced in

district court. Reno, 507 U.S. at 301. Thus, the civil or

criminal nature of the regulation did not turn on the conditions

of confinement. Rather, if conditions were improper, the

district court could order that the conditions be improved.

The last case Young discusses is Allen v. Illinois, which

concerned a law authorizing the civil commitment of sexually

dangerous persons. Young points to the phrase in the opinion

it “might well be a different case” if petitioners had shown

conditions of confinement essentially identical to that of felons.

Resp. Br. at 20. This statement is clearly dicta and, even as

dicta, it does not adopt the “as applied” test advocated by

Young and the Ninth Circuit. What is significant is that the

court did not remand for an evidentiary hearing. Instead, it

looked to the requirement of the law that “sexually dangerous

persons must not be treated like ordinary prisoners”. Allen,

374 U.S. at 374.7

> Young also discusses a decision of the Court of Appeals

for the Fourth Circuit, Sas v. Maryland, 334 F.2d 506 (4th Cir. 1964).

Resp. Br. at 19. Sas challenged a Maryland law establishing a procedure to

commit certain convicted criminals to an institution for criminally mental

and emotional defectives. Young points out that the Fourth Circuit

remanded the case to consider deficiencies in staff, facilities, and finance.

However, on remand, when the district court considered whether the law

was civil or criminal in nature, it concluded that the law was civil and that

the “answer to this question must be determined from the face of the

Finally, Young argues that Hudson doesn’t apply

because, as a matter of substantive due process, “no

punishment is permissible under a civil commitment statute”.

Resp. Br. at 15. In making this argument, Young attempts to

skip over the threshold question of whether the Statute is civil

or criminal. However, the civil versus crimina! inquiry is

critical in determining the nature of Young’s substantive due

process rights and how they are vindicated. If the Statute is

civil (as Young’s very argument presumes), Young cannot be

punished, but his substantive due process right is vindicated

through an action under 42 U.S.C. § 1983 to ameliorate the

punishment. The facial test of Hudson remains the proper

analysis to determine whether the Statute is civil or criminal.

This case is controlled by Hudson. There is no basis to

distinguish Hudson from the case at bar. Accordingly, the civil

or criminal nature of Washington’s Statute must be determined

on the face of the law, not “as applied”. When the proper

standard is employed, “Hendricks forecloses the claim that the

Washington statute, on its face, violates the ex post facto and

double jeopardy clauses”. Young v. Weston, 192 F.3d at 874.

Cc. A Facial Test, Not An “As Applied” Test,

Appropriately Determines Whether The

Legislature Has Enacted A Civil Or Criminal

Remedy

Our opening brief explained why the holding in Hudson

is sound, as applied to this case. First, and most important, the

civil versus criminal review is a limitation on legislative power

designed to preclude legislative bodies from enacting criminal

laws without the attendant constitutional protections. Pet. Br.

at 23-24. Only the legislative branch of government is

empowered to authorize criminal punishment, and it may do so

only by enacting laws. Schick v. Reed, 419 U.S. 256, 275

Act”. Sas v. Maryland, 295 F. Supp. 389, 402 (D. Md. 1969). The staff and

facilities issues noted by Young related to an equal protection claim, not

the civil or criminal nature of the law. /d. at 415-16.

~~ ooo_--— .

(1974) (“Prescribing punishment is a prerogative reserved for

the lawmaking branch of government, the legislature.”);

Dowling v. United States, 473 U.S. 207, 214 (1985) (citing

United States v. Wiltberger, 5 Wheat 76, 95 (for the “plain

principle that the power of punishment is vested in the

legislative, not in the judicial department”)). As this is so, the

appropriate focus for determining whether a law creates a civil

or a criminal remedy is the law itself — its purpose and its effect

— as expressed by the Legislature in the statute’s provisions.

Young does not respond to this point.

In this respect, as we explained in our opening brief, the

facial approach adopied by Hudson is consistent with the

language and purpose of the ex post facto clause. Pet. Br. at

26. In the context of determining whether a statute imposes a

civil or criminal remedy, the ex post facto clause serves to

check legislative prerogative. Pet. Br. at 26; Miller v. Florida,

482 U.S. 423, 429 (1987) (“the reason the Ex Post Facto

Clauses were included in the Constitution was to assure that

federal and state legislatures were restrained from enacting

arbitrary or vindictive legislation”).

A second important reason for rejecting the Ninth

Circuit’s “as applied” test is that it is unworkable. Pet. Br. at

29-30. Since conditions of confinement can change over time,

the result of the Ninth Circuit’s “as applied” test is that the

same law may be civil in one year when adequate treatment is

being provided and criminal in another year when it is not.

Young argues that this is not a problem because courts are able

to distinguish between passing and pervasive

unconstitutionality. Resp. Br. at 36. This may be true, but it

misses the point, and it does not resolve the workability

problems with the “as applied” test. The question in this case

is not whether the Statute is constitutional. The question is

whether the Statute imposes a civil remedy or a criminal

punishment. This threshold question requires a consistent

answer, else the constitutional requirements applicable to the

10

law, including several with a trial or pre-trial focus, will not be

known until long after proceedings under the law are complete.

For example, our opening brief explained Hudson's

rejection of the “as applied” test in favor of examining the law

on its face is consistent with the historic purpose of double

jeopardy as a pre-trial plea to prevent multiple prosecutions.”

Pet. Br. at 25. The “as applied” approach allows multiple

prosecutions because it is impossible to know how a sanction

will be applied until the prosecution is successfully completed

and a sanction is imposed. In response, Young argues that the

double jeopardy clause prohibits multiple punishments as well

as multiple prosecutions. Resp. Br. at 37-38. Young is correct

that decisions of this Court hold that the double jeopardy clause

prohibits multiple punishments.’ However, Young’s argument

again misses the point. The most effective way to prohibit both

multiple prosecutions and multiple punishments is to determine

the civil or criminal nature of a law prior to the imposition of

the sanction. Hudson achieves this result.

The Ninth Circuit’s “as applied” test is unworkable in a

second way. Under it, the constitutionality of procedures set

out in the civil commitment law may vary depending on where

a person is confined. An example illustrates this point.

Assume the Legislature adopted a civil commitment law that

provides for psychiatric examination of the person to be

committed and requires adequate treatinent. However, instead

of one institution like the Special Commitment Center (SCC)

> Of course, we do not suggest that the test used to determine

whether a law is civil or criminal depends on the underlying constitutional

provision at issue. Hudson, 522 U.S. at 112 (Souter, J., concurring) (“there

is obvious sense in employing common criteria to point up the criminal

nature of a statute for purposes of both the Fifth and Sixth Amendments”);

Ward, 448 U.S. at 254 (“[I]t would be quite anomalous to hold that

[a statute] created a criminal penalty for the purposes of the Self-

Incrimination Clause but a civil penalty for all other purposes.”).

“However, Justices Scalia and Thomas have concluded that “the

Double Jeopardy Clause prohibits successive prosecution, not successive

punishment”. Hudson, 522 U.S. at 106 (Scalia, J., concurring).

1]

there are two. One institution provides adequate treatment, and

the other does not. Under Young’s “as applied” test, the same

law would be civil with regard to one institution and criminal

with regard to the other. There is no Fifth Amendment

guarantee against self-incrimination under a civil commitment

law. Allen, 478 U.S. at 368-70. Thus, the psychiatric

examination would be constitutional if the person was

committed to one institution, but improper if the person was

committed to the other. Yet the statute and the Legislature’s

intent in adopting the law is exactly the same.

Our opening brief also explained the “as applied” test is

inconsistent with the duty of the executive branch to faithfully

execute the law. Pet. Br. at 27-29. Since Kendall v. United

States ex rel. Stokes, 37 U.S. 524 (1838), the Court has rejected

the notion that the executive has the authority to suspend laws

enacted by the legislative branch. In this case, the Washington

Legislature has enacted a civil law that requires adequate

care and individualized treatment. Wash. Rev. Code

§ 71.09.080(2); Pet. App. at 122a. If an executive agency fails

to provide adequate treatment, it cannot transform the

legislative intent to adopt this civil remedy into legislative

intent to adopt a criminal penalty. Young attempts to

distinguish Kendall by pointing out that the executive in this

case makes no claim of the power to override the law. Resp.

Br. at 39 n.26. This statement is true, but it also misses the

point. The “as applied” test treats an executive agency’s

failure to execute the law as though it suspends or alters the

intent of the legislative branch, even though the executive

agency claims no such power.

Il. Young’s Recourse For Allegedly Punitive

Conditions Of Confinement Is A Challenge To

The Conditions, Not A Challenge To The Statute

Young has a remedy to cure inadequate treatment and

other conditions of confinement. The remedy is an action

under 42 U.S.C. § 1983. If Young succeeds, he would be

12

entitled to redress, including correction of the unlawful

conditions.”

Based on what Young characterizes as “intransigence”

on the part of SCC defendants in the Turay litigation, he argues

that an action under 42 U.S.C. § 1983 is not an adequate

remedy to rectify unconstitutional conditions of confinement.

Resp. Br. at 57-59. Young’s argument overlooks several

important points.

First, it is not open to dispute in this Court that Young

has been properly adjudged to be dangerous and to suffer from

a mental abnormality that makes him likely to engage in

predatory acts of sexual violence, if he is not constrained. The

remedy Young seeks — release pursuant to habeas corpus —

would entirely subordinate these constitutional and compelling

bases justifying Young’s commitment to the conditions of his

confinement. Habeas corpus would provide a disproportionate

response in circumstances such as these, where the alleged

constitutional deficiencies do not taint the bases for

* Young argues as though it is established that he has been

subjected to punitive conditions of confinement over a period of years.

Pet. Br. at 14. However, highly selective findings cited by Young from

other litigation do not demonstrate the pervasive or longstanding punitive

conditions that Young asserts. Young v. Weston, 192 F.3d 874-7 5, 877;

Pet. App. at 8a, 13a. Young also selectively refers to orders in Turay v

Weston. Resp. Br. at 6-10. Young's reliance on Turay as establishing

punitive conditions of confinement is particularly misplaced. As noted by

the district court judge in the 7wray proceeding, Turay does not concern

whether conditions of confinement at the SCC are punitive for purposes of

the double jeopardy or ex post facto clauses. Lodging Of Petitioner

(Lodging) at A (Findings Of Fact, Conclusions Of Law, And Order Re

Motions Heard April 18-21, 2000 at 9). Turay challenged conditions of

confinement at the SCC on several grounds — some similar to those alleged

by Young. Compare JA at 64-65 to Pet. App. at 8a-lla. Notably, Turay

failed in all but one of his allegations — i.e., that the SCC did not provide

“access to mental health treatment that gives him a realistic opportunity to

be cured or to improve the mental condition for which he was confined .

the standard adopted by the district court for measuring the constitutional

adequacy of this treatment.

13

confinement itself and where the alleged deficiencies are

otherwise remediable.

Second, the premise of Young’s argument seriously

understates the magnitude of the effort necessary to comply

with the myriad and detailed treatment directives of the 1994

Turay injunction and subsequent orders regarding the

injunction. These orders and the series of special master’s

reports in TJuray repeatedly recognize and reflect the

complexity and inherent difficulty of the undertaking.® See,

e.g., JA at 114, 142; Supplemental Lodging Of Petitioner

(Suppl. Lodging) at A (First, Preliminary Report of Special

Master at 4). In the best of circumstances, it is a challenging

and complex task to construct and successfully administer a

model treatment program as ordered by the district court. It is

made more difficult when a significant segment of the

population resists treatment and works to disrupt treatment

efforts. JA at 133; Suppl. Lodging at B (Second Report of

Special Master at 3-4; Suppl. Lodging at C (Third Report of

Special Master at 6).

Third, the premise of Young’s argument gives short

shrift to the substantial progress that the SCC has made toward

completing compliance with the district court’s Turay

injunction. It is true that the pace of the SCC’s efforts has not

been uniformly acceptable to the district court, but the

injunction proceeding has been characterized by progress and

significant improvement in the treatment program at the SCC.

JA at 113, 128, 142.’ The district court has found that

* In a Supplemental Lodging Of Petitioner, the State has provided

the orders of the district court on the Twray injunction, and the series of

special master reports to the district court in that matter.

” Amicus NACDL errs in asserting that the federal district court

judge “has been compelled to enter repeated contempt orders and sanctions

on a multiplicity of occasions”. Amicus Br. at 12. Prior to November

1999, the district court repeatedly denied requests by the Turay plaintiffs to

hold the SCC defendants in contempt. Suppl. Lodging at S (Order On

Turay’s Motion For Further Injunctive Relief And For Order Holding

Defendants In Contempt Of Court 11-21-95; Order On Plaintiff's Renewed

14

“conditions at SCC are far better than they were when the

injunction was issued in 1994” and that compliance with the

injunction is approaching being “substantially complete”.

Lodging at A (Findings Of Fact, Conclusions Of Law, And

Order Re Motions Heard April 18-21, 2000 at 10).*

Finally, Young’s argument overlooks the broad powers

of the federal courts in remedying violations of federal rights.

In Hutto v. Finney, 437 U.S. 678 (1979), the Court affirmed a

district court’s entry of broad injunctive relief in an action

under 42 U.S.C. § 1983, challenging cruel and unusual

conditions of confinement in an Arkansas prison. The Court

explained that “[o}nce invoked, the scope of a district court’s

equitable powers to remedy past wrongs is broad, for breadth

and flexibility are inherent in equitable remedies.” Hutto, 437

U.S. at 687 n.9 (quoting Swann v. Charlotte-Mecklenburg Bd.

of Educ., 402 U.S. 1, 15 (1971)). As Hutto also makes clear,

sanctions necessary to compel compliance with federal court

orders are well within the arsenal of the federal judiciary.

Hutto, 437 U.S. at 690.

Motion For Injunctive Relief And Contempt, And Defendants’ Motion For

Release From Injunction 4-2-96), T (Order On Plaintiff's Renewed Motion

For Injunctive Relief And Contempt, And Defendants’ Motion For Release

From Injunction 2-4-97; Order On Plaintiff's Renewed Motion For

Contempt And Defendants’ Renewed Motion For Release From Injunction

10-1-97). Although the district court entered a contempt order in November

1999, it has seen fit to hold in abeyance the payment of sanctions pending

further review. Lodging at A (Findings Of Fact, Conclusions Of Law, And

Order Re Motions Heard April 18-21, 2000 at 19).

* Insofar as Young challenges the adequacy of mental health

treatment at the SCC, this most recent finding of the district court would be

relevant to his claim. Such a challenge by Young also would have to be

considered in light of the fact that Young refuses to participate in treatment.

Suppl. Lodging at Z (Order On 1996 Annual Review And Respondent’s

Motion To Dismiss at 3).

15

III. Young’s Renewed Attacks On The Facial Validity

Of The Statute And On His Commitment Are

Barred And Fail

As noted at the outset of this brief, Young reasserts

numerous claims rejected by the Ninth Circuit that he did not

raise in a petition or cross petition in this Court. The Ninth

Circuit rejected Young’s facial attacks on the Statute, correctly

holding that Washington’s Statute, like its essentially identical

counterpart sustained in Kansas v. Hendricks, 521 U.S. 346

(1997), is civil, and that, on its face, the Statute comports with

substantive due process. Young v. Weston, 192 F.3d at 874,

876-77; Pet. App. at 7a, 12a-13a. Similarly, the Ninth Circuit

properly rejected Young’s challenges specific to his

commitment. /d. at 1202; Jd at 13a.

. . Nevertheless, Young seeks to reassert these claims, and

in doing so, he seeks to change the judgment entered by the

Ninth Circuit. An argument that would modify the judgment

below may not be presented unless a cross petition has been

filed. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

119 n.14 (1985); Federal Energy Admin. v. Algonquin SNG,

Inc., 426 U.S. 548 (1976). The Ninth Circuit’s judgment

remanded Young’s “as applied” double jeopardy and ex post

facto claims for an evidentiary hearing. Young’s facial

challenges would invalidate the Statute without need of an

evidentiary hearing and modify the judgment below. Young’s

bald assertion that these claims are fairly subsumed in the

question presented also is not meritorious. Yee v. City of

Escondido, 503 U.S. 519, 537-38 (1992) (questions that are

merely “related” or complimentary to the question presented

are not “fairly included therein”). Although these issues are

not properly before the Court, the State briefly responds to

them, to avoid any implication of agreement with Young.

oe Young asserts that “legislative inaction” in remedying

objectionable conditions of confinement at the SCC

demonstrates the Legislature’s punitive purpose in enacting

Washington’s Statute and negates the law’s facial validity

16

under the double jeopardy and ex post facto clauses. Young's

argument fails for several reasons, not the least of which is that

the facial validity of Washington’s law is not before the Court.

However, even if the claim were open, it would lack

merit. The Washington Legislature clearly expressed its intent

that Washington’s law is civil and explicitly provided that

persons committed under it are entitled to adequate care and

individualized treatment. Wash. Rev. Code § 71.09.080(2);

Pet. App. at 122a. Washington’s highest court has construed

the law as a civil statute primarily concerned with

incapacitation and treatment. Jn re the Personal Restraint

Petition of Young, 122 Wash. 2d 1, 22 (1993); Pet. App. at 42a.

Further, as the following chart depicts, the Legislature has

provided substantial and continuously increased funding to

implement the Statute’s provisions. It is unclear what more

Young would require of the Legislature. Certainly, legislative

bodies are ill-equipped to undertake the ongoing management

of governmental programs and institutions.

**+ * *€ &

* Washington has a part-time Legislature. It convenes once a year

with a regular session of 105 days in odd numbered years and 60 days in

even numbered years. Wash. Const. art. Ii, § 12. Washington budgets on a

biennial basis with a new biennium beginning on July Ist of each odd

numbered year. The Legislature adopts a budget for the next ensuing

biennium during its session in odd numbered years and makes necessary

biennial budget adjustments in supplemental budgets. Wash. Rev. Code

§§ 43.88.020(7), .080. The Legislature has made appropriations to

implement the Statute in biennial and supplemental budgets. See infra at

17, notes 11-16.

17

FUNDING BY WASHINGTON LEGISLATURE

FOR WASH. REV. CODE § 71.09

BIENNIUM APPROPRIATION

1989-9] 1,614,000'°

1991-93 4,908,000"!

1993-95 6,053,000'7

1995-97 7,576,000'7

1997-99 15,253,000"

1999-01 22,835,000'°

In addition, in its most recent session, the Legislature

made a $14 million capital appropriation to begin construction

of new SCC facilities, having a total projected cost of $64

million. 2000 Wash. Laws, 2d Sp. Sess., ch. 1, §§ 205(3),

1013.

'° 1990 Wash. Laws, Ist Ex. Sess., ch. 16, § 203(g), (h).

'' 1991 Wash. Laws, Ist Sp. Sess., ch. 16, § 204(3).

'? 1993 Wash. Laws, Ist Sp. Sess., ch. 24, § 204(3); 1995 Wash.

Laws, Ist Sp. Sess., ch. 1, § 204(3).

'? 1995 Wash. Laws, 2d Sp. Sess., ch. 18, § 204(3); 1996 Wash.

Laws ch. 283, § 204(3); 1997 Wash. Laws, ch. 454, § 1104(3).

'* 1997 Wash. Laws, ch. 149, § 204(3); 1998 Wash. Laws, ch. 346.

§ 204(3); 1999 Wash. Laws, ch. 309, § 1204(3).

'S 1999 Wash. Laws, ch. 309, § 205(3); 2000 Wash. Laws, 2d Sp.

Sess., ch. 1, § 205(3).

© In its first year of operation, 1991, the average monthly

population of the SCC was 4 people. Its population has grown over time.

In 1998, the last year for which actual average population figures are

available, the SCC had an average monthly population of 59. {i is estimated

that the SCC will have an average monthly population of 108 in the year

2000. Wash. Legis. Budget Notes, 1997-99 Biennium, at 97 (June 1998);

Wash. Legis. Budget Notes, 1999-00 Biennium, at 126 (June 1999).

18

Young next argues that legislative history demonstrates

the punitive purpose of the Statute. However, for two reasons,

this argument avails Young nothing. First, statutory

construction is a component of the facial inquiry into whether a

law is civil or criminal for purposes of the double jeopardy and

ex post facto clauses. As is the case with Young’s “legislative

inaction” contention. the facial validity of Washington’s law,

and considerations _ legislative history that attend such an

inquiry, are not before the Court.

However, even if they were, Young’s proffered

“legislative history” is of particularly dubious value, comprised

of selected statements from a gubernatorial task force report

and post-enactment legal commentary on Washington’s

Statute. Resp. Br. at 26-29. The Court has declined to accord

any authoritative value to materials having significantly greater

nexus to legislative action than the materials offered by Young.

Garcia v. United States, 469 U.S. 70 (1984)."”

Young also endeavors to resurrect a facial substantive

due process challenge to Washington’s Statute, contending that

its definition of “mental abnormality” is deficient. This claim

also was decided adversely to Young in the Ninth Circuit and

drew no petition from Young. Young v. Weston, 192 F.3d at

876; Pet. App. at 12a. However, even if the question were

before the Court, Washington’s definition of mental

abnormality is indistinguishable from the definition of “mental

abnormality” sustained against attack on substantive due

process grounds in Hendricks.'*

'7 Young also asserts that the review procedures of the Statute are a

sham. Resp. Br. at 54, 56. His claim is not borne out by the review process

as reflected in his case. Suppl. Lodging at Z (Order On 1996 Annual

Review And Respondent’s Motion To Dismiss).

'® Wash. Rev. Code § 71.09.020 defines “mental abnormality’ as a

“congenital or acquired condition affecting the emotional or volitional

capacity which predisposes the person to the commission of criminal sexual

acts in a degree constituting such person a menace to the health and safety

of others”. Pet. App. at 104a. The Kansas statute sustained in Hendricks

defined “mental abnormality” as a “congenital or acquired condition

19

Finally, Young challenges one of the specific diagnoses

(severe paraphilia not otherwise specified, rape) used as

evidence to support the jury’s unanimous determination that he

suffers from a mental abnormality. Resp. Br. at 44. As with

Young’s renewed facial challenges to the Statute, this claim

also was rejected by the Ninth Circuit and is not properly

before the Court. In addition, on Young’s direct appeal from

his commitment, the Washington Supreme Court recounts at

length and appropriately scrutinizes the expert testimony estab-

lishing that Young suffers from a mental abnormality. Jn re

Young, 122 Wash. 2d at 15-16, 29-30; Pet. App. at 34a-35a,

50a-52a.

CONCLUSION

: The Ninth Circuit reversed the decision of the district

court in part and remanded for an evidentiary hearing. This

portion of the Court of Appeals decision is in error. It should

be reversed, and the respondent’s Petition for Writ Of Habeas

Corpus should be dismissed.

CHRISTINE O. GREGOIRE

Attorney General

SARAH BLACKMAN SAPPINGTON*

Assistant Attorney General

DAVID J. W. HACKETT

Special Assistant Attorney General

WILLIAM BERGGREN COLLINS

MAUREEN HART

Senior Assistant Attorneys Ger zral

900 Fourth Avenue, Suite 2000

Seattle WA 98164-1012

(206) 464-6430

*Counsel of Record

Counsel for Petitioner

August 7, 2000

affecting the emotional or volitional capacity which predisposes the person

,

to commit sexually violent offenses in a degree constituting such person a

menace to the health and safety of others”. Hendricks, 521 U.S. at 352.