# Reply Brief — Seling v. Young

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0352%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 250

## Text

FILED

AUG 7 2000

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Supreme Court, US.

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NO. 99-1185
:
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.

—

—

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0352%3A11. Public record. Not legal advice.