Opposition Brief — Ylst v. Myers

one. 90-112

‘IN THE

BS COURT OF THE UNITED STATES

"ede Term, 31999

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oes

ey ae

hte Le

ea Sarton! “Pa ataones,

2H aFrosr7r0% TO PETITIO N

FOR WRIT OF CERTIORARI

FERN M. LAETHEM

California State Public Defender

MICHAEL PESCETTA*

Deputy State Public Defencer

1390 Market Street. Suite 425

San Franciscc Talifornia 94102

Telephone: (415) 557-1600

Attorneys for Respondent

Counsel of

QUESTIONS PRESENTED

Should plenary review on certiorari be granted to

decide: (1) Whether a decision that a state court must

afford similar treatment to similarly situated litigants,

with respect to an issue of state law, is a "new" rule under

Teague v. Lane and its progeny; and

(2) Whether the guarantee of equal protection of

the laws permits a state court to afford radically incon-

sistent treatment to similarly situated litigants, when

there is no justification for the distinction in treatment.

J /

fi

TABLE OF CONTENTS

QUESTIONS PRESENTED

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

STATEMENT OF CASE

ARGUMENT

AN APPLICATION OF THE EQUAL PROTECTION CLAUSE

REQUIRING A STATE TO TREAT SIMILARLY-SITUATED

LITIGANTS SIMILARLY DOES NOT IMPOSE A "NEW

RULE" WITHIN THE MEANING OF TEAGUE v. LANE

THE INCONSISTENT TREATMENT AFFORDED BY THE

CALIFORNIA SUPREME COURT TO SIMILARLY

SITUATED LITIGANTS WHOSE CASES PRESENTED

THE IDENTICAL ISSUE VIOLATE THE EQUAL

PROTECTION CLAUSE

CONCLUSION

ii.

Page

14

TABLE OF AUTHORITIES CITED

Auto Equity Sales, Inc. v. Superior Court,

57 Cal.2d 450, 20 Cal.Rptr. 321

369 P.2d 937 (1962)

Butler v. McKeller,

aoe U.S. , 108 L.Ed.2d 347

Draper v. Washington,

373 U.S. 487, 489-490, (1963)

Estelle v. Gamble,

429 U.S. $37 (13976)

Evitts v. Lucey,

469 U.S. 387 (1985)

F.S. Royster Guano Co. v. Virginia,

253 U.S. 412 (1920)

In re Rhymes,

Crim. No. 22024

In re Rhymes,

170 Cal.App.3d 1100,

217 Cal.Rptr. 439 (1985)

Iowa-Des Moines National Bank v. Bennett,

284 U.S. 239 (1931)

Johnson v. State of Arizona,

462 F.2d 1352 (9th Cir. 1972)

Knouse v. Nimocks,

8 Cal.2d 482, 66 P.2d 438 (1937)

LaRue v. McCarthy,

833 F.2d 140 (9th Cir. 1987)

Maxwell v. Bugbee,

250 U.S. 525 (1919)

Myers v. Ylst,

897 F.2d 417 (9th Cir. 1990)

& &

Pages

14

passim

TABLE OF AUTHORITIES CITED CONT'D

Cases

Palmore Sidoti,

466 U.S. 429 (1984)

People v. Bell,

Crim. No. 20879

People v. Bell,

49 Cal.3d 502, 262 Cal.Rptr. 1,

778 P.2d 129 (1989)

People v. Harris,

Crim. No. 21633

People v

36 Cal.3

679 P.2d

People v

Crim. No

People v

45 Cal.3

729 P.2d

Plyler v.

457 U.S.

Rice v.

349 U.S.

Shelley

334 U.S.

Teague v.

489 U.S.

Virginia

100 U.S.

Yick W

118 |

. Harris,

qd 36, 201 Cal.Rptr. 782

433 (1984

. Myers

21991

. Myers,

qd 250, 23

698 (1987

Doe,

202 (1982)

Sioux City Cemetery,

70 (1955)

v. Kraemer,

1 (1948)

Lane,

103 L.Ed.2d 334

Vv. Rives

313 (188C

Hopkins,

204 }RRE

i @)

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oa)

TABLE OF AUTHORITIES CITED CONT'D™

Constitutions

Pages

5,6,8,11

U.S. Const., XIV amend.

Court Rules

Rules of Court

Rule 29.4

Rules of App.

Supreme Court Rule

Statutes

(a) (17) (i)

Gressman & S. Shapiro,

Supreme Court Practice,

12

14

NNN

14

No. 90-112

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

EDDIE S. YLST, Warden, Petitioner,

Ve

VENSON LANE MYERS, Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

Respondent VENSON MYERS respectfully prays that

this Court deny the petition for certiorari, seeking review

of the decision of the Court of Appeals for the Ninth

Circuit in this case. That opinion is reported at

897 F.2d 417.

four cases inv¢ the sme whether inder

state constitut faci« how f ystemat

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est je case e eory at Har S was not retroac

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ve People v. Myer 4 al.3a 2 261, 233 Cai.Rptr.

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26% ; ‘ 129 (1989 emphasis supplied).

Respondent petition for a writ r nabeas corpu

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the panel opinion. The court held that respondent's r t

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under the equal protection clause of the Fourteent!

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Amendmen had been violated, because nce a state ha

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established a rule it must be applied evenhandedly.

Myer: y. wae 89 F.2q 417 421 tl Lr 199 UOT }

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REASONS FOR DENYING THE WRIT

I

AN APPLICATION OF THE EQUAL PROTECTION CLAUSE

REQUIRING A STATE TO TREAT SIMILARLY-SITUATED

LITIGANTS SIMILARLY DOES NOT IMPOSE A "NEW

RULE" WITHIN THE MEANING OF TEAGUE v. LANE

Petitioner argues that the equal protection rule

applied in this case is a "new rule" within the meaning of

Teague v. Lane, 489 U.S. , 103 L.Ed.2d 334, 356, and its

progeny. Petitioner's argument assumes that over a hundred

years of this Court's jurisprudence applying the equal pro-

tection clause of the Fourteenth Amendment has not yet

established the rule that a state court, in applying state

law, must treat similar cases similarly. Petitioner's

assertion that certiorari should be granted to address this

question is nonsense.

It has long been settled that the application of

state law by a state court can violate the equal protection

clause. In an unquestioned line of cases extending from

Virginia v. Rives, 100 U.S. 313, 318 (1880), through

Shelley v. Kraemer, 334 U.S. 1, 14-15 (1948), to Columbus

Board of Education v. Penick, 443 U.S. 449, 457 n. 5 (1979)

this Court has held that the actions of a state court, like

the actions of any state agency, are subject to scrutiny for

equal protection violations. Accord, Palmore v. Sidoti, 466

U.S. 429, 432-435 (1984) [reliance by state court on racial

factor in making child custody decision]; Draper v.

Washington, 373 U.S. 487, 489-490, 494-499 (1963)

[application of state court's rules on entitlement to tran-

script on appeal]. There is no novelty in the application

of the Fourteenth Amendment to the actions of a state court.

It is equally well-settled that, substantively, the

equal protection clause requires states to apply state law

rules evenhandedly and thus to treat similar cases simi-

larly. The clause guarantees "the right . .. to equal

treatment. . . ." Iowa-Des Moines National Bank v.

Bennett, 284 U.S. 239, 247 (1931). "Equal protection of the

laws requires equal operation of the laws upon all persons

in like circumstances." Maxwell v. Bugbee, 250 U.S. 525,

541 (1919). "The Equal Protection Clause directs that ‘all

persons similarly circumstanced shall be treated alike'."

Plyler v. Doe, 457 U.S. 202, 216 (1982), quoting

F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415

(1920). The cases in which this Court has applied this

principle, which is obvious from the plain words of the

equal protection clause itself, are too numerous to

rehearse; and its application by the Court of Appeals in

this case breaks no new ground.

Petitioner's attempt to characterize the Court of

Appeals' application of these unquestioned principles as a

"new rule" under Teague is ridiculous. The application of

the equal protection clause in this situation is clearly

"controlled" by this Court's precedents. See Butler

v. McKellar, 494 U.S. ___, 108 L.Ed.2d 347, 356 (1990). A

contrary ruling would mean that the Fourteenth Amendment --

a provision specifically directed at curbing state action --

could never be applied to a state court conviction on col-

lateral review, regardless of how clearly prior caselaw

mandaqted its application. Nothing in Teague or its progeny

suggests so bizarre a result.

The flimsiness of petitioner's claim on this point

is accentuated by its failure to advance the Teague argument

before the filing of the petition for rehearing in the Court

of Appeals. Teague was decided on Feburary 22, 1989, 103

L.Ed.2d 334, well before the oral argument in this case

(which was held in the Court of Appeals on April 4, 1989),

and over a year before the decision was issued (on

February 28, 1990). Yet petitioner neither alluded to

Teague in argument, nor sought to draw the decision to the

attention of the Court of Appeals after argument, under Rule

28(j) of the Federal Rules of Appellate Procedure. This

strongly suggests that petitioner's invocation of Teague is

a belated attempt to inject an issue ostensibly justifying

review on certiorari where no such issue in fact exists in

the case.

//

Ts

II

THE INCONSISTENT TREATMENT AFFORDED BY THE

CALIFORNIA SUPREME COURT TO SIMILARLY

SITUATED LITIGANTS WHOSE CASES PRESENTED

THE IDENTICAL ISSUE VIOLATED THE EQUAL

PROTECTION CLAUSE

There is no factual dispute as to the actions of

the California Supreme Court which give rise to respondent's

equal protection claim. The court enunciated a rule of

state law in Harris; it ordered the reversal of the convic-

tion in Rhymes on the basis of the same interpretation of

the state rule; it then denied the benefit of that ruie to

respondent, whose case presented the identical issue, on the

Same record, as in Rhymes; and it then applied the rule

again in Bell. The imagination could not construct a more

obvious instance of a state rule "applied. . . with an evil

eye and an unequal hand," Yick Wo v. Hopkins, 118 U.S. 356,

373-374 (1886) which violates the equal protection clause.

No plausible argument can be made that review on certiorari

is necessary to reiterate this Court's consistent juris-

prudence condemning such unequal treatment.

Petitioner, and the dissent in the Court of

Appeals, mischaracterize respondent's claim as an effort to

dictate to the California Supreme Court in which

case--Rhymes or Myers--it would decide the question of the

retroactivity of Harris. Petition at 28; Myers v. Ylst,

supra, 897 F.2d at 426 (Kozinski, J., dissenting). This is

inaccurate. The question is not one of form, as to which

case should have been decided first. Rather, it is a

question of substance: whichever case was the vehicle for

deciding whether Harris was retroactive, the other,

similarly-situated case had to be decided the same way so

that each case would receive "equal protection"--that is,

equal application or non-application--of the Harris rule.

What is wrong with this case is that the California Supreme

Court refused to apply the Harris rule here, purportedly on

the basis of retroactivity, but it had already directed the

reversal of the conviction in Rhymes without any mention of

retroactivity, and it subsequently applied Harris in Bell,

again without any mention of retroactivity. This case pre-

sents a clear situation of a state court arbitrarily

applying a rule of state law; it is precisely this unequal

treatment that the equal protection clause of the Fourteenth

Amendment does not permit.

The sole rationale advanced for the difference in

treatment between respondent's case and Rhymes is that the

California Supreme Court's disposition of Rhymes was a

"housekeeping" measure. Myers v. Ylst, supra, 897 F.2d at

426 (Kozinski, J., dissenting). Petitioner seeks to inflate

this by characterizing it as the court's "management of its

docket" and its "Shaping of state law." Petition at 22, 32.

There is, however, not one scintilla of evidence in the

record in this case to support such a conclusion: nothing in

the Supreme Court's order in Rhymes or decision in Myers

suggests this rationale.

10.

ee |

Neither does petitioner, or the dissenting judge in

the Court of Appeals, explain how the mere convienience of a

court in disposing of its cases creates a "difference" which

bears a "fair relationship to a legitimate public purpose"

Plyler v. Doe, 457 U.S. 202, 216 (1982), which would justify

completely different treatment of litigants whose cases pre-

sent an identical issue and which are pending before the

same court at the same time. Still less does this

"housekeeping" theory distinguish between similarly-situated

cases in a way which is "precisely tailored to serve a com-

pelling governmental interest", id. at 217, the standard

which would apply to the proffered distinction in light of

the state's obligation to conduct its system of appellate

review consistent with the demands of due process of law.

See Evitts v. Lucey, 469 U.S. 387, 401-405 (1985).

This "housekeeping" theory also depends upon inter-

pretation of the state procedural rules relating to

petitions for hearing to determine the effect of the

California Supreme Court's action in Rhymes. Myers v.

Ylst, supra, 897 F.2d at 422-423; id. at 426-428 (Kozinski,

J., dissenting). Those rules are no longer in effect, see

West's Cal. Rules of Court, Rule 29.4 and Advisory Committee

Comment, at p. 30 (1986); and this renders review on certio-

rari particularly inappropriate. Rice v.

Sioux City Cemetery, 349 U.S. 70, 77 n. 1 (1955).

Finally, whatever purported distinction may be sug-

gested between respondent's case and Rhymes, there is no

ll.

such distinction between respondent's case and Bell. Both

Myers and Bell were capital cases, pending before the

Ce ifornia Supreme Court at the same time; and the jury

selection in Bell predated the jury selection in Myers. See

People v. Bell, supra, 49 Cal.3d at 513, 521; People v.

Myers, supra, 43 Cal.3d at 255, 260-261. Yet the California

Supreme Court applied the Harris rule retroactively in Bell,

49 Cal.3d at 526 n. 12, after denying respondent the benefit

of that rule on the supposed ground of non-retroactivity.

Although the Bell decision was drawn to the attention of the

Court of Appeals before its decision, neither the dissenting

judge in the Court of Appeals, nor the state in its petition

for certiorari, suggests any reason why Bell should have the

benefit of the supposedly non-retroactive Harris rule while

respondent was denied that benefit. The complete absence of

any conceivable rational distinction between Bell and Myers

to justify the application of Harris in one case and not the

other is a clear demonstration of the equal protection vio-

lation, irrespective of any purported justification for the

difference in treatment in Rhymes. This, in turn, renders

the question presented by the petition for certiorari inap-

propriate for certiorari review.

We submit that the constitutional principle at

issue is quite clear; the only basis for believing that a

ruling in this case would have an important or widespread

effect would be the assumption that state courts do habitu-

ally apply state law rules in an arbitrary fashion. Absent

12.

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chat assumpt Ly cnere is: nr) Dasist LOr cna

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Diall ana Simpieé appiil > | l ne equal protection Ciause

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to this case as presenting an important or novei question of

r r

nstitutional law which would justify an exercise of this

settled [constitutional] law," Estelle v. Gamble, 429 U.S.

'

+

. . « patently inappropriate." R. Stern, E. Gressman &

. Ty f “ DD - - + “<> 4 + as.

. Shapiro supreme Court Practice 223 (6tn ed. 1986).

« nm —_

No. 90-112

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

EDDIE S. YLST, Warden, Petitioner,

Vv.

VENSON LANE MYERS, Respondent.

CERTIFICATE OF SERVICE

I hereby certify that I am a member of the Bar of

the Supreme Court of the United States and that I served a

copy of the accompanying BRIEF IN OPPOSITION TO PETITION FOR

CERTIORARI and MOTION FOR LEAVE TO PROCEED IN FORMA

PAUPERIS, by depositing a copy of each document in the

United States mail, first class mail, postage prepaid,

addressed as follows:

JOHN VAN de KAMP

Attorney General cf the

State of California

3580 Wilshire Boulevard

Los Angeles, CA 90010

Attention: Thomas L. Willhite, Jr.

RECEIVED

AUG 2 0 1990

OFFICE ~ THE CLERK

SUPREME COURT, U.S.

All parties required to be served have been served.

Done this 16th day of August, 1990.

Deputy State Public Defender

1390 Market Street, Suite 425

San Francisco, CA 94102

Tel. No. (415) 557-1600

CONCLUSION

For the reasons stated above, the petition for a

writ of certiorari should be denied.

DATED: August 16, 1990

Respectfully submitted,

FERN M. LAETHEM

California State Public De der

MICHAEL PESCETTA

Deputy State Public Defender

Attorneys for Respondent

MP:vb

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