Reply Brief — Kansas v. Marsh

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FILED

APR 13 2005

ic THE LERK

OFFICE OP OO eee

No. 04-1170

IN THE

Supreme Court of the Gnited States

STATE OF KANSAS,

Peti -oner

v.

MICHAEL LEE MARSH, II.

Re spondent

On Petition for a Writ of Certiorari

to the Supreme Court of the State of Kansas

REPLY BRIEF FOR PETITIONER

PHILL KLINE

Attorney General of Kansas

NOLA TEDESCO FOULSTON

District Attorney

LSth Judicial District of Kansas

JARED S. MAAG

Deputy Attorney General

(Counsel of Record)

KRISTAFER AILSLIEGER

Assistant Attorney General

120 S.W. 10th Avenue, 2nd Floor

lopeka, Kansas 66612-1597

(785) 296-2215

(‘ounsel for Petitioner

i

TABLE OF CONTENTS

Page

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ii

TABLE OF AUTHORITIES

Page

Cases:

Adams v. Robertson, 520 U.S. 83 (1997)... cccccccccccccccccccceeeseee 3

In re Estate of Anderson, 865 P.2d 1037

Gham. C2, Age. SGGBD....nusissssisssensiiasaaiae 2

Franks v. Delaware, 438 U.S. 154 (1978) .o.cccccccccccccscecceeceeees 3

In re Lett, 640 P.2d 1294 (Kan. Ct. App. 1982) oo. 2

Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123 (1914)....... 3

Orr v. Orr, 440 U.S. 268 (1979) ooo. cccccccccecccecsecseceeeeeeeeee. 3

Payton vy New York, 445 U.S. 573 (1980) ...cccccccccccccscesceeceeees 3

Raley v. Ohio, 360 U.S. 423 (1959) oooccccccccccccccccesecesseeeeeeees 3

Ring v. Arizona, 536 U.S. 584 (2002) ......cccccccccccececeeceeeeesceeeee l

State v. Kleypas, 40 P.3d 139 (Kan. 2001),

cert. denied, 537 U.S. 834 (2002).........ccccccsccsscceseeseeee 2e 4, 5

State v. Sims, 862 P.2d 359 (Kan. 1993) oo ooooocccccccccccccceceeeeeeee 2

Umbehr v. Bd. of Wabaunsee County Comm'rs,

OES FOB CFG Gam, BORD acconsisncecnssneseninmussiasinn 2

Walton v. Arizona, 497 U.S. 639 (1990),

overruled sub nom. on other grounds, Ring v. Arizona,

FSB UD. FOO Ce cccctetnsintsice 1,2,4

Statutes

pL UE Oe EY . ; NON em l

3B UBLLS FIST ccxcsctsectinnsiimaee l

OF OF OS | | ae 2

Kan. Stat. Ann. § 21-4624(e) .00........:.cccccccccessseescesssseseeesece 1,4

Kan. Stat. Ann. § 60-2106(b).........ccccccccccccccceceeccessceeeseeeeeeeee 2

REPLY BRIEF FOR PETITIONER

In the case at bar, the Kansas Supreme Court clearly

and expressly declared that Kansas’ death penalty statute is,

on its face, repugnant to the United States Constitution. In

the Petition for a Writ of Certiorari, petitioner demonstrated

that the decision of the lower court directly conflicts with the

Court's decision in Walton v. Arizona, 497 U.S. 639 (1990).

overruled sub nom. on other grounds, Ring v. Arizona, 536

U.S. 584 (2002), and created a conflict with the Ninth Circuit

and Supreme Courts of Arizona and Idaho. The petition

further demonstrated that the lower court's decision, striking

down Kansas’ capital sentencing system and calling into

doubt the validity of other states’ capital sentencing systems,

is an important issue that merits the Court's consideration.

Respondent does not attempt to deny any of this in his Brief

in Opposition. Rather, he devotes his entire brief to the

argument that the Court lacks jurisdiction because petitioner

did not raise the federal constitutional issue before the lower

court. That argument is fatally flawed. The low > court

unquestionably passed on the question presented in the

petition. Therefore, under 28 U.S.C. § 1257 and the Court's

own precedent, jurisdiction to review that decision is

satisfied.

1. Under 28 U.S.C. § 1257(a), “[f]inal judgments or

decrees rendered by the highest court of a State in which a

decision could be had, may be reviewed by the Supreme

Court by writ of certiorari .. . where the validity of a statute

of any State is drawn in question on the ground of its being

repugnant to the Constitution.” In the present case, the

Kansas Supreme Court expressly declared that Kansas’ death

penalty statute, Kan. Stat. Ann. § 21-4624(e), is repugnant to

the United States Constitution. Pet. App. Sa Syl. % 25; 21a.

This case plainly meets the jurisdictional requirements of 28

U.S.C. § 1257.

The Kansas Supreme Court ruled on the constitutional

issue—the question presented in the Petition for a Writ of

|

Certiorari—in two, mutually supporting, ways. First, the

court stated in its syllabus that “the statute is unconstitutional

on its face under the Eighth and Fourteenth Amendments.”

Pet. App. 5a Syl. © 25. In Kansas, the syllabus of the court ts

considered a statement of the law of the case and part of the

binding decision of the court. See Kan. Stat. Ann. § 20-111;

Kan. Stat. Ann. § 60-2106(b).'

Second, the Kansas Supreme Court reiterated the same in

the body of its decision. Under the heading,

“CONSTITUTIONALITY OF K.S.A. 21-4624(e).” the court

committed several pages to a_ discussion of the

constitutionality of the statute. Pet. App. 17a-2la. The court

noted that between respondent's sentencing and appeal, it

had decided State v. Kleypas, 40 P.3d 139 (Kan. 2001), cert.

denied, 537 U.S. 834 (2002), in which it determined that the

application of the statutory weighing equation was

unconstitutional. Pet. App. 18a. Quoting from A/eypas, the

court reiterated why it believed the weighing equation was

unconstitutional. /d. at 19a-20a. The court specifically

addressed the application of Walton, supra, stating its view

“that a majority of the United States Supreme Court has

never squarely addressed or decided the facial

constitutionality of the equipoise provision before us.” /d. at

21a. The court concluded its analysis of the constitutionality

of the statute by saying, “[a]fter full reconsideration, we

reject reliance on Justice Blackmun’s Walton dissent and

continue to adhere to the A/eypas majority's reasoning and

' See also, ¢.g.. State v. Sims, 862 P.2d 359, 364 (Kan. 1993) (discussing

proper application of a particular syllabus paragraph as precedent);

Umbehr v. Bd. of Wabaunsee County Comm'rs, 843 P.2d 176, 181 (Kan.

1992) (discussing generally the nature of syllabus paragraphs and their

subsequent application in later cases), /n re Estate of Anderson, 865 P.2d

1037, 1042 (Kan. Ct. App. 1993) ("We base our decision on a point of

law stated in the Supreme Court's syllabus in Burcham."), In re Lett, 640

P2d 1294, 1300 (Kan. Ct. App. 1982) (Abbott, PJ., concurring)

("Although it has been argued by some members of this court that the

holding in question is dicta, the disputed language is contained in the law

of the case at syllabus P 2.").

3

holding that K.S.A. 21-4624(e) as written is unconstitutional

under the Eighth and Fourteenth Amendments.” /d. at 21a

(emphasis added). There can be no doubt that the Kansas

Supreme Court believed that the constitutional issue now

raised was before it and that it announced a holding on that

issue.

2. The crux of respondent's argument in opposition is that

the constitutional issue now raised by petitioner was not

presented to the lower court. However. even if that were

true, it would not deprive the Court of jurisdiction. The

Court stated in Adams v. Robertson, 520 U.S. 83, 86 (1997)

(per curiam), that “we have adhered to the rule in reviewing

State court judgments under 28 U.S.C. § 1257 that we will

not consider a petitioner's federal claim unless it was either

addressed by. or properly presented to. the state court that

rendered the decision we have been asked to review.”

(emphasis added). Thus, even if the issue was not properly

presented before the lower court, the fact that the lower court

addressed the constitutional issue and rendered a decision

based on the Constitution is sufficient to confer jurisdiction

on the Court to review the matter.

Indeed, it is well settled in a long line of decisions of the

Court that “[a] ruling on the merits of a federal question by

the highest state court leaves the federal question open to

review.” Franks v. Delaware, 438 U.S. 154, 161 (1978). As

far back as 1914, the Court recognized its authority to review

federal questions decided by state courts, even though a

particular federal question “had not been expressly asserted

below.” Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134

(1914). The Court observed that, “it is irrelevant to inquire

how and when a Federal question was raised in a court below

when it appears that such question was actually considered

and decided.” /d. This was reiterated in Raley v. Ohio, 360

U.S. 423, 436 (1959) (“There can be no question as to the

proper presentation of a federal claim when the highest state

court passes on it.”); Orr v. Orr, 440 U.S. 268, 274-75

(1979) (quoting Manhattan Life. supra). and Payton v. New

4

York, 445 U.S. 573, 582 n.19 (1980) (“Although it is not

clear from the record that appellants raised this constitutional

issue in the trial courts, since the highest court of the State

passed on it. there is no doubt that it is properly presented for

review by this Court.”). The Court has jurisdiction to review

the Kansas Supreme Court's holding that the Kansas death

penalty statute violates the Eighth and Fourteenth

Amendments.

3. In all events, and contrary to respondent's assertion.

the constitutionality of Kan. Stat. Ann. § 21-4624(e) was

raised in the lower court—by respondent. See Pet. App. 19a

(“Marsh makes the further argument, however. that K.S.A.

21-4624(e) is unconstitutional on its face .. .”). Before the

Kansas Supreme Court. respondent argued that the statute

was unconstitutional on its face. and petitioner argued that it

was not.

The litigation strategy of the parties can only be

understood by recognizing the role of State v. Kleypas in the

decision below. The Aleypas court addressed the very

arguments presented here and rejected petitioner's

contention that the weighing equation in Kan. Stat. Ann. §

21-4624(e) was constitutional under Walton v. Arizona,

supra. Pet. App. 96a-119a. Instead of holding that the

statute was unconstitutional on its face, however, the court

held that the statute should be construed to provide that the

death penalty can be imposed cnly when the aggravating

circumstances outweigh the mitigating circumstances. The

Court ruled that, “{s]o construed, we hold that K.S.A. 21-

4624 does not violate the Eighth Amendment prohibition

against cruel and unusual punishment.” Pet. App. 119a.

Accordingly, petitioner could not seek the Court’s review of

the lower court’s conclusion in K/eypas given that the statute

was ultimately construed to be constitutional.

By the time the instant case came before the Kansas

Supreme Court, there was no federal constitutional issue for

petitioner to raise. The statute, as definitively construed in

5

Kleypas, did not suffer from the purported constitutional

problem of requiring that death be imposed if the

aggravating and mitigating evidence are in equipoise.

Petitioner can hardly be faulted for not asserting the federal

constitutional issue which became relevant only after the

Kansas Supreme Court overruled its earlier construction of

the statute.

Respondent's principal contention in this case was that the

Statute was unconstitutional on its face under the Eighth and

Fourteenth Amendments, and that by construing the statute

to be constitutional in Kileypas, the court violated the

separation of powers doctrine and the guarantee of a

republican form of government set forth in Article IV.

section 4, of the United States Constitution. BIO App. 8-10.

In response, because Aleypas was binding precedent,

petitioner was forced to take the position that, while it

desired a different outcome in Kleypas, the issue had been

decided and Kleypas was now the law. Accordingly.

petitioner did not reiterate the very same arguments that the

lower court had rejected in K/eypas, but rather maintained

that the statute was constitutional as determined in Kleypas.

Petitioner could not reasonably foresee that the lower

court would reopen the consticutional issue it had so recently

decided. As the Chief Justice of the Kansas Supreme Court

noted in her dissent in the present case, “the K/eypas court

unanimously upheld the constitutionality of K.S.A. 21-

4624(e),” Pet. App. 69a, and, “[oJur decision in Kleypas is a

mere 3 years old, and nothing this court has said in the

interim has evidenced our intention to abandon its

underlying principles.” /d. at 74a. Further, she noted, “there

has been nothing in the jurisprudence of the United States

Supreme Court during that time to show that our decision in

Kleypas was incorrect.” /d. at 74a-75a. Under the

circumstances, petitioner could not reasonably foresee that

the lower court would exhume and rely upon the same

arguments it considered in Kleypas. However, the court

6

below did, and in doing so, squarely passed upon the federal

constitutional question presented here.

4. In any event. none of the described history affects the

Court's jurisdiction as the lower court unquestionably held

that the statute at hand was repugnant to the Constitution of

the United States. Jurisdiction has clearly been satisfied and

review by the Court is therefore warranted.

CONCLUSION

For the foregoing reasons, and those stated in the petition,

the petition for a writ of certiorari should be granted.

Respectfully submitted,

PHILL KLINE

Attorney General of Kansas

NOLA TEDESCO FOULSTON

District Attorney

18 Judicial District of Kansas

JARED S. MAAG

Deputy Attorney General

(Counsel of Record)

KRISTAFER AILSLIEGER

Assistant Attorney General

120 S.W. 10th Avenue, 2nd Floor

Topeka, Kansas 66612-1597

(785) 296-2215

Counsel for Petitioner

April 2005